House of Lords
Tuesday 13 April 2021
Prayers—read by the Lord Bishop of Gloucester.
Arrangement of Business
Death of a Former Member: Baroness Williams of Crosby
My Lords, I regret to inform the House of the death of the distinguished former Member, the noble Baroness, Lady Williams of Crosby, on 12 April. On behalf of the House, I extend our very sincere condolences to the noble Baroness’s family. I hope that there will be an opportunity for tributes to be paid in the very near future.
Retirements of Members
My Lords, I should like to notify the House of the retirement, with effect from 9 April, of the noble Baroness, Lady Kinnock of Holyhead, whom we know so well, and, with effect from 12 April, of my friend, the noble Lord, Lord Ryder of Wensum, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Baroness and the noble Lord for their very much-valued service to this House.
Clerk of the Parliaments
Retirement of Ed Ollard
To resolve that this House has received with sincere regret the announcement of the retirement of Ed Ollard from the office of Clerk of the Parliaments and thinks it right to record the just sense which it entertains of the zeal, ability, diligence, and integrity with which the said Ed Ollard has executed the important duties of his office.
My Lords, I am delighted to move this Motion to give the House an opportunity to pay tribute to the outgoing Clerk of the Parliaments, Ed Ollard.
From 1983, when he joined as a fast-stream clerk, Ed served this House with distinction. He provided outstanding service in a variety of senior roles within the House, including as Private Secretary to the Leader and Chief Whip, Finance Director and the Clerk of Committees. Before he became the 64th Clerk of the Parliaments, he served as Clerk Assistant to Sir David Beamish for six years.
In these varied roles, Ed provided Members across the House, and its political leadership, with courteous and professional procedural advice and was a source of authoritative leadership to the staff of the House. He was generous and resourceful, often going way beyond the call of duty. On one such occasion, he went so far as to provide clothing to the Government Chief Whip, my noble friend Lord Ashton. I am happy to confirm to noble Lords that this did not involve Lycra, but my noble friend did borrow a white bow-tie from Ed to save his blushes at a reception in Buckingham Palace.
Between 1992 and 1994 Ed served as Private Secretary to the then Leader of the House, my noble friend Lord Wakeham, and Viscount Cranborne. Some noble Lords will recall this as a particularly demanding parliamentary Session, as the Maastricht Bill was passing through the House. Ed must have had a strong sense of déjà vu over the last few years as we worked through legislating for our exit from the European Union.
Across the various posts he held, Ed oversaw a number of significant changes which helped modernise our processes for the benefit of the whole House, including overhauling the clerks’ Table with modern equipment, overseeing the transformation of House publishing and printing, and playing a central role in implementing the recommendations of the Ellenbogen report on bullying and harassment—an issue he was deeply committed to addressing as the senior officer responsible for the staff of the House.
But by far the most significant changes Ed presided over have been those implemented since March 2020 in response to Covid. These changes will be familiar to noble Lords across the House, but what may be less well known is the vast amount of work he did behind the scenes to bring our hybrid proceedings to life. Over Easter last year, Ed helped develop and oversee the initial setting up of our virtual proceedings, in less than three weeks, and then our move to hybrid proceedings. It was a huge but critical task that ensured that this House has been able to undertake its business during these unprecedented times, and while we all may have had our frustrations with the hybrid way of working, none of us can deny how essential the changes Ed helped deliver have been in allowing us to continue our important function during this pandemic. For that, we all owe Ed an immense debt of gratitude.
Ed has left the House as we undergo a significant period of change. Over the next few weeks, we will have a new Speaker and a new Chief Operating Officer, and we will, I hope, be taking further steps forward as we slowly return to the normal way of doing business. I look forward to working with the new Clerk of the Parliaments, Simon Burton, as we navigate the future and welcome him to his role.
As he leaves this role, I am sure Ed will find more time to enjoy his favourite pastimes of watching Charlton Athletic—I could not say so myself, but I am sure some will think that only a Clerk of the Parliaments who has served over the last few years in this House can enjoy such a thing, but that is up to Ed—and, of course, following the Tour de France and cycling himself. I suspect the sightings of Lycra on the West Front Corridor will decrease quite significantly now Ed has left us. On a more serious note, I am sure the whole House will join me in thanking Ed for his distinguished service and we wish him, his wife Mary and their family all the best for the future. I beg to move.
My Lords, it is an honour to have the opportunity to pay tribute to Ed Ollard as the outgoing Clerk of the Parliaments on his retirement. I admit that this is something of a first for me: it is not the first time that I have spoken to recognise somebody’s service on retirement, but it is the first time I have ever done so for somebody who is younger than I am.
Ed started his career in the House of Lords in 1983. Noble Lords might be aware that this was the year in which it was first decided to televise proceedings in your Lordships’ House. We cannot hold him responsible for that, but I refer to it to illustrate that he started his career here at a time of great change, and his career here has ended at a time of great change, although I know he shares our optimism that many of the current changes will be temporary.
When Ed announced his retirement last September, we knew that his choice of date was for our convenience, not his. As I said at the time, for a man who cycled into the office each day—hence the Lycra—the choice to continue to do so in the wet and cold winter months could have been only through a sense of duty. Those of us who saw his Lycra-clad arrival, and then his appearance in the Chamber, could only marvel at his Superman-style changes as he swapped one pair of tights for another.
As we heard from the noble Baroness, his career has been one of diligent and resourceful service. Taking account of Queen’s Speeches, royal visits, addresses from Heads of State, restoration and renewal, security issues and the pandemic, it is true to say that there is never been a quiet moment. He has seen many challenges, not least over the past year. The hybrid way of working, despite its necessity, is frustrating to us all. Ed’s guidance, advice and suggestions, as we navigated our way through the difficulties to ensure that we could continue our work, were always thoughtful and considered.
On many occasions, I have been grateful for his advice. I say “grateful,” but it was not always what I wanted to hear. However, I was never in any doubt that he had the interests of your Lordships’ House, its Members and its staff at heart. It is to his credit that he has never been precious about the issues that I raised with him. I can remember calls from sunnier climes during recesses, including one occasion when I had to seek advice about the House being recalled. On another occasion, I was locked in the car park and the police could not find the key to the barrier. Ed was on call with good humour, courtesy and advice at all times—and he found the key.
Although the role of the Clerk of the Parliaments has been around since the 14th century, some core abilities are needed, whatever the times. I confess that I discreetly probed some staff about my comments today, and I was told that in times of crisis, as Kipling wrote, he kept his head when everyone else was losing theirs. His Tudor predecessors certainly needed that skill.
Ed’s departure coincides with further great change. As the noble Baroness said, we have a new Clerk of the Parliaments; we will be appointing a new Chief Operating Officer and a new Clerk Assistant, and we will be electing a new Lord Speaker. They will have to take forward the transition to more normal ways of working and the work, as outlined by the noble Baroness, of the external management review. As Simon Burton takes the reins, we wish him well and look forward to working with him. Today, however, we genuinely and warmly thank Ed for his contribution and his distinguished service, which was always undertaken with modesty and good humour. I wish him well watching Charlton Athletic. I have some fondness for the team: my dad played for a youth team generations ago. I join the Lord Privy Seal in wishing Ed Ollard, our Clerk of the Parliaments, and his wife Mary a long and happy retirement.
My Lords, it is a great pleasure to follow the Leader of the House and the noble Baroness, Lady Smith, in paying tribute to Ed Ollard for his work as Clerk of the Parliaments and his long career in your Lordships’ House.
To the outside world, I am sure that the House of Lords looks a rather timeless place, where tradition counts for everything and nothing ever changes. During Ed’s career, and particularly during his time as Clerk of the Parliaments, very much has changed. When he started work here, there were approximately 250 life Peers and 450 hereditary Peers. Among Peers with political affiliations, the Conservatives had almost exactly twice as many as Labour and ourselves combined. Even when I joined in 1997, I was told by our then Chief Whip not to expect to be able to do anything or change anything because of this overhang of such a huge Conservative majority. How things have changed: the removal of most of the hereditaries, the greater politicisation of the House and the willingness to challenge not just the Government of the day but the way we do things have transformed the nature of the Lords. The pandemic has brought with it revolutionary changes in the way in which we conduct our business, which a little over a year ago could not have even been contemplated.
During his time as senior clerk, and most particularly Clerk of the Parliaments, Ed has had to manage these fundamental changes of procedure and the way we operate in the Chamber. He has also had to confront, as a result of the Ellenbogen report, the need for widespread change in the way we do things outside the Chamber, while preparing us, I hope, for the rigours of the R&R process. I worked closely with Ed since he became Clerk of the Parliaments, and have seen at first hand, to quote from the Motion before us today,
“the zeal, ability, diligence, and integrity”
with which he has undertaken this role. He embodies the best traditions of the British Civil Service and has set high standards for professionalism and probity, for which we should all be very grateful. Personally, I have been immensely grateful for the consideration he gave me when I contacted him on the most disparate range of issues, one of which, for at least one member of my group on that day, was the most important thing in their life, but certainly not the most important thing in his. He will have a worthy successor in Simon Burton, with whom I look forward to working as closely as I have with Ed.
In his interview in the House magazine, Ed says that his plans for the future consist of going to the beach as soon as Covid restrictions allow. On the assumption that he did not only have UK beaches in mind, I am sure that he is aware that the places that are likely to open up their beaches soonest include Caribbean islands and the Maldives. I have, therefore, attempted to picture Ed suitably attired, perhaps in a floral shirt, sipping an umbrella-topped cocktail in one of those places. I am afraid that my imagination has failed me, but I hope that on whichever beach he chooses, he enjoys a very well-deserved break now and a very long and full retirement thereafter.
My Lords, this is the second time in less than 24 hours that I have stood up to say that I agree with everything that has been said by everybody who has spoken before me, and, more importantly, all of them have agreed with each other. Long may it continue, making Simon Burton’s role so much easier to perform. Can we hang on to that?
I will not repeat the many admirable qualities that Ed Ollard has brought to this office. I join the others who have spoken on behalf of the Cross-Benchers and enthusiastically adopt what they have said, but there is something that this House seems not to know about Ed Ollard. He is a master of quizzes. Did your Lordships know that he has been given a trophy as the champion quiz man in this place? It is a lovely little cup that was presented to him by members of the staff. He knows all sorts of outrageously stupid things, meaning that he has a mind crammed full of completely useless intelligence. However, I have set him a few questions for his retirement. Which institution has been described in the past as “addled”, “drunken”, “mad”, “merciless”, “useless” and, just but once, “good”? I am sure that he knows the answer to that. Then there is a trick question. How many Members of the House of Lords can stand on the head of a pin? Well, he has spotted the trick there, but here is one that even he will need a whole week to get round to answering: how long is a piece of string?
I do not anticipate much of an answer, but I do anticipate the continuing accumulation of this wonderful, useless knowledge, so that when teams are being picked—remember when we were small, we all lined up and hoped that we would be picked for the best team—Ed Ollard will always be picked first for any quiz. He will have time to learn more and more of what it is lovely to think of as fulfilling knowledge as well as trivia.
My Lords, I am very glad that I do not have to answer those questions, because I do not know the answers. However, I want to add a few words from these Benches, paying tribute on behalf of the Lords spiritual. My colleagues and I have greatly benefited from Ed Ollard’s sound judgment, diligent support and practical guidance in his time as the Clerk of the Parliaments. We on these Benches are immensely grateful for his calm and steady stewardship during, as others have said, this very unpredictable time. Navigating a unique transition to a hybrid Parliament, the role of the Clerk of the Parliaments has been challenging. He has met it head on, and it is a testament to his adaptability that your Lordships’ House has functioned so well and effectively during this pandemic. We warmly welcome Simon Burton to the role and very much look forward to working with him, but today, we want to say a huge “thank you” to Ed Ollard and to wish him all the best for the future.
My Lords, before I put the Question on the Motion in the name of the Lord Privy Seal, I add that Ed has been invaluable during my time as Lord Speaker. The advice he has given on a range of issues has been an enormous support. His approach was always cautious. On more than one occasion, he counselled that what I was proposing would not be appropriate, and what was worse was that he was always right. Importantly, he always spoke with authority, and the Deputy Speakers also thank him for the enormous support that he gave.
When Ed assumed office as the Clerk of the Parliaments in 2017, little did he know what lay ahead. His advice and practical guidance acted as a bedrock during one of the most tumultuous periods in recent political history, as the United Kingdom left the European Union and the House found itself at the heart of a landmark Supreme Court case. Recently, of course, he has led the radical procedural changes and wholesale operational transformation that has enabled the House to keep working during the Covid-19 crisis. It was an enormous achievement.
On behalf of the House of Lords Appointments Commission, the Deputy Speakers and the whole House, I express very sincere gratitude and wish Ed a very happy and well-deserved retirement.
Motion agreed nemine dissentiente.
Clerk of the Parliaments
Introduction of Simon Burton
The letters of appointment for Mr Simon Burton as the next Clerk of the Parliaments were read and he made the prescribed declaration:
“I, Simon Burton, do declare that I will be true and faithful and troth I will bear to Our Sovereign Lady the Queen and to Her Heirs and Successors. I will nothing know that shall be prejudicial to Her Highness Her Crown Estate and Dignity Royal, but that I will resist it to my power and with all speed I will advertise Her Grace thereof, or at the least some of Her Counsel in such wise as the same may come to Her knowledge. I will also well and truly serve Her Highness in the Office of Clerk of Her Parliaments making true Entries and Records of the things done and passed in the same. I will keep secret all such matters as shall be treated in Her said Parliaments and not disclose the same before they shall be published, but to such as it ought to be disclosed unto, and generally I will well and truly do and execute all things belonging to me to be done appertaining to the Office of Clerk of the Parliaments”.
After which he took his seat at the Table.
Arrangement of Business
United Nations Biodiversity Conference
My Lords, it has recently been confirmed that the CBD COP 15 will now take place between 11 and 24 October in Kunming, China. Despite the continued delay due to Covid-19, we are engaging fully in the preparations and negotiation process. We continue to lead work internationally, including on the Leaders’ Pledge for Nature, through the UK-led Global Ocean Alliance and in our role as ocean co-chair of the High Ambition Coalition, to secure support for our objectives. We are also working closely with non-state actors, including the private sector and NGOs, to help shape UK priorities, and will continue to engage in opportunities at all levels in the lead-up to COP 15. Domestically, we are extending our protected areas, bringing forward new legislation to restore and enhance nature and introducing new funding to support that process.
My Lords, I particularly welcome the Minister’s comments about oceans and maritime issues. It is really important that COP 15 is successful—we need it to be. Will it be attended by a senior Minister or the Secretary of State? What is the most important matter that the Minister and the Government wish to be resolved and acted upon following the conclusion of this conference?
My Lords, the UK is playing a key role. I think it is fair to say that we are doing more heavy lifting than almost any other country in the world to secure the maximum possible ambition from the CBD. Clearly, our number one goal is to leave the convention with meaningful, robust and ambitious targets commensurate with the scale of the challenge we face. In addition, we need the world to raise its collective finance for nature and nature- based solutions to climate change. We also need mechanisms to enable people—individuals, civil society and other Governments—to hold countries to the promises they make.
My Lords, in demonstrating our commitment to biodiversity, can we in the UK put more emphasis on the diversity part? To take the example of what we are doing with woodlands, it is wonderful that we are planting lots of trees, but it is a very limited range of species from a very limited selection of genotypes. We need to take diversity seriously if we are to push that in the world.
My noble friend makes an extremely important point. As the Minister in charge of developing the tree strategy, I am absolutely determined that as we use public money, which will be necessary to achieve the targets we set, we do so in a way that delivers the maximum possible solution. That means not simply having hectare after hectare of monoculture but ensuring that we maximise biodiversity at every opportunity and deliver not just a win for climate but a win in terms of boosting our declining biodiversity in this country.
My Lords, many species of plant, animal and other life forms have been in steep decline over centuries, yet the COP measures hitherto have not been transformative. Are the UK and the world systematic, ambitious and bold enough? Do we not need a national and global census of all life forms and clear, actionable plans to safeguard the myriad wonders of our natural world?
I wholeheartedly agree with the noble Lord about the scale of the crisis. We will be familiar with the numbers; they are shocking at every possible level, whether we are talking about terrestrial or ocean biodiversity. He is also right to say that targets have been set and missed many times in the past. What must be different about this convention is that, in addition to having those strong targets and ensuring we have the finance necessary to deliver them, we must have mechanisms enabling countries to be held to their promises—just as we have with climate and carbon emissions reduction commitments. We do not currently have them in relation to biodiversity. That is the bit that is missing and that the UK is pressing hardest for.
My Lords, biodiversity decline and climate change are twin crises and need equal and urgent concentration, so why are the Government continuing to refuse to accept a legally binding state of nature target in the current Environment Bill, in the way that there are already legally binding targets for climate change in UK legislation? Does the Minister agree that we will not get much credit for any heavy lifting or leverage at Kunming if the Government have just had a messy public punch-up as the Environment Bill goes through, refusing to adopt legally binding biodiversity targets here in the UK?
My Lords, it is absolutely right to say that climate change and biodiversity are two sides of the same coin. They represent the gravest threat we face, and we cannot tackle one effectively without also tackling the other. There is no pathway to net zero emissions without a major increase in support for nature and nature-based solutions, so I wholeheartedly agree with the noble Baroness. It is not the case that the Government are refusing to include the mechanism she proposes—the target around biodiversity and state of nature. This is a live issue and one we are engaging with very actively. I hope that when we bring the Bill to the House, we will be able to have a meaningful discussion about that.
Targets for previous CBDs have been missed, as the Minister has acknowledged. None was legally binding, unlike the Paris climate agreement. Do the Government support the post-2020 CBD framework, including legal obligations for all countries to deliver against global targets?
The Government are keen to push for the maximum possible ambition. There is no area in the discussion where any country is having to drag us kicking and screaming. We are the country pushing hardest for that ambition, but there is a line somewhere between the maximum ambition and what is deliverable. Things that may appear relatively mundane and not particularly radical to the UK are nevertheless big sells for certain countries. Our job is to use every diplomatic skill and lever we have to bring the rest of the world with us, and we will take the world as far as we possibly can. Where that takes us is hard to predict.
In recent decades, freshwater species have seen their populations decline twice as fast as land and marine species. Sadly, English rivers are in a particularly bad state, with just 14% deemed to be of good ecological standard. Ahead of the UN biodiversity conference, does the Minister agree that it is more important than ever for the UK, as the host of COP 26, to lead by example? Can he confirm whether Defra will use the Environment Bill to deliver the department’s recent pledge to finally do something about tackling sewage pollution in rivers?
It is absolutely right that to speak with authority internationally, the UK needs to get its own house in order. That is not the case at the moment. Our biodiversity has been in decline; our environment is denuded. However, we have put in place a number of ambitious steps to try to turn that trajectory: the first Environment Bill for 20 years, with a whole host of ambitious measures; the green recovery challenge fund; getting NGOs restoring nature and tackling climate change in communities up and down the country; a £640 million Nature for Climate Fund; big and ambitious tree-planting targets; peatland restoration targets; and, above all, a commitment to switch the old land use subsidy system so that instead of incentivising destruction, it incentivises good environmental stewardship. The tools and the commitment are there, but we have some way to go.
My Lords, the ground-breaking UN report, The Economics of Ecosystems and Biodiversity, said that we need to reflect on both
“the value of nature, and on the nature of value.”
The loss of species and the decline in the ability of natural systems to provide for humanity’s needs is not just an environmental catastrophe—it is an economic one as well. As has been said, the two COPs happening this year have complementary ambitions. Will my noble friend the Minister encourage the UK position to reflect the fact that Governments alone cannot solve this problem? We have to engage, empower and deploy the power of markets and the private sector, on a global scale, to make the difference that is needed.
That is absolutely right. A big part of our campaign as president of COP is to encourage donor countries to step up with more finance for nature. We are showing leadership ourselves, having doubled our international climate finance to £11.6 billion. We are committing to spend about a third of that on nature-based solutions and we want others to do something similar. Even if we succeed, however, that will not be anything like enough finance for nature; we will need more. That means mobilising private finance on an unprecedented scale and ensuring high-integrity carbon markets; we need a breakthrough around the Article 6 negotiations. Above all, we need to mainstream nature through the way we do business and align, for example, the big multilateral development banks not just with Paris commitments but with nature as well.
The link between agriculture and biodiversity is absolutely clear. What plans do the Government have to take targets to reduce the land use for agriculture to the meeting? Can the Minister tell us his view on the need to cut down the amount of land used for livestock and livestock feed? Currently, humans and the animals that we plan to eat make up 96% of all the animals on Earth, which is not a bio- diverse way forward.
This will be an important part of our work in the run-up to COP. The noble Baroness may perhaps consider that the top 50 food-producing nations spend about $700 billion a year subsidising often destructive land use. One of our goals—an important one—is to try to encourage as many countries as possible to shift the way those incentives are used so that they support nature. We are also trying to break the link between commodity production and deforestation—commodity production is responsible for about 80% of the world’s deforestation. We are leading in global dialogues with producer and consumer countries to that end.
Clergy: EU Visas and Residence Permits
To ask Her Majesty’s Government what assessment they have made of the impact of new (1) visa, and (2) residence, permit regimes for United Kingdom citizens working in the European Union on the numbers of Church of England clergy securing such permits.
My Lords, the withdrawal agreement protects UK nationals who were lawfully resident in the EU before the end of the transition period. Thirteen member states require them to apply for new resident status. British citizens travelling to the EU for work may need visas or permits from relevant member states. Member states are, of course, responsible for implementing their domestic immigration systems, and the UK does not hold information on the specific occupations of UK nationals abroad.
I thank the Minister for his Answer. This is of course a question that goes wider than the Church, but let us consider a diocese in Europe supporting UK citizens which is now unable to assign clergy for locum duty, for example, because of the lack of clarity regarding work permits. How do the Government intend to support UK citizens in what was an inevitable outcome of the withdrawal agreement? Can the Minister give any practical encouragement to the Bishop in Europe as he seeks to resolve these issues?
My Lords, I assure the right reverend Prelate that, as he may well be aware, we are working very closely with the Church of England—for example, on citizens’ rights—as it is one of the implementing partners of the UK nationals support fund. In addition, through our embassies, we are providing direct and relevant support as well as an extensive communications programme for all citizens across the European Union.
My Lords, in questioning the Minister for the Foreign, Commonwealth and Development Office, I hope that it is appropriate to say that my noble friend Lady Kinnock of Holyhead was an inspirational internationalist all her working life. Her lifetime of public service has helped changed lives throughout the world and we wish her well in her retirement. On the issue of visas for clergy, the Church of Scotland also has deep concerns about the position of locum ministers serving congregations throughout the European Union following Brexit. It also has concerns about split ministries, where the minister involved may be part-time in two different, perhaps neighbouring, countries, in two different churches. Will the Government guarantee to involve the Church of Scotland in any discussions about resolving these issues, including, of course, other Churches and faiths?
My Lords, are the problems experienced by the Churches not yet a further example of the increasingly tetchy relationship between the UK and the EU? I commend to my noble friend the very perceptive article in today’s Times by our noble friend Lord Hague, who points out how very important it is that we get on well and constructively? We have not left Europe. These are our friends and neighbours; it is incumbent upon them, and us, to ensure that we have a relationship which enables the normal decencies of life to be observed.
I agree with my noble friend Lord Cormack, and indeed with my noble friend Lord Hague. That is why we work very constructively, including on citizens’ rights, with the European Union. The Specialised Committee on Citizens’ Rights oversees the implementation and application of citizens’ rights; this is part of, and central to, the withdrawal agreement.
My Lords, the loss of free movement has harmed the lives and livelihoods of so many. Given that families and the ability to work have been severely impacted by the pandemic, are the Government considering alleviating one aspect of the childcare crisis—namely, the loss of au pairs—by providing a usable, dedicated visa route, so that this cultural exchange programme, which also assists families, can continue?
My Lords, the noble Baroness will be aware that, as part of the trade and co-operation agreement, we have agreed various protocols. There is not a specific resolution for each and every profession but, as I said in response to an earlier question, we are looking at this very constructively with our European Union friends to ensure that we can unlock any issues or particular challenges for workers, as the noble Baroness has suggested.
My Lords, many religious communities are not yet aware of how they will be affected by Brexit. They have relied on EU members to fill temporary posts; this will be hit when free movement ends on 31 December, along with routes for the previous temporary priest cover for summer holidays, for example. They can no longer sponsor a worker in the tier 5 category to fill the post of temporary minister of religion. Do the Government anticipate that the basis of an individual’s visits will fall within the visitors’ visa rules?
My Lords, the Question reminds us that we have inextricable ties of culture, trade and even religion with our former partners in the European Union. Does the Minister agree that, rather than looking selectively to the concerns of Anglicans, we should be looking to better working arrangements for all branches of Christianity, as well as other faiths and cultures, in reducing onerous visa requirements and enhancing better living and working arrangements with our former partners in Europe?
My Lords, I will first perhaps correct the noble Lord by saying that we do not regard the European Union as former partners; we continue to have a strong partnership with the European Union on a range of different issues. On the issues of religion and communities across Europe, yes, diversity is a strength of the continent and we should encourage those who wish to visit different parts of it. In this regard, the noble Lord will be aware of what has already been agreed: the ability to visit different countries on a rolling basis without the necessity of visa requirements. Anyone wishing to visit the European Union from the UK can do so for 90 days on a revolving 180-day basis.
My Lords, I would like to broaden the Question a little. The Church of England has a long and established history of engaging with other Churches in Europe and further afield, as well as with other faith groups. One campaign that it is involved in is VaccinAid, a campaign that aims to help to fund Covid vaccine rollout. What has the Government’s response been to ensure that that programme continues and that the Church of England’s practical support in Europe and further afield is aided?
My Lords, as I have already said in response to an earlier question, we are working very closely with the Church of England. We have set up a specific fund that helps to support UK citizens and are working with partner organisations, of which the Church of England is one, on the programme that the noble Lord has raised. I will write to him on the specifics of that.
My Lords, I want to press the Minister on reciprocity. There are expatriate communities in this country that also have religious services—the Swedish Church in London, in which I have sung, and other Lutherans; French and Polish congregations; Jewish congregations with visitors from the continent—so there are clear mutual interests. Are we negotiating on the basis of reciprocity or are we asking for greater freedom of access for UK citizens in the EU than for EU citizens in the UK?
My Lords, the noble Lord raises an important issue on reciprocal arrangements. There are a whole range of areas where we have seen reciprocal arrangements put in place. The whole purpose of the Specialised Committee on Citizens’ Rights, which is supported both by the UK and by the EU—officials are meeting regularly—is to unlock those very issues that can provide for the kind of access that he is suggesting.
My Lords, the questions that I was going to ask have been answered by the Minister in response to the noble Lords, Lord Collins and Lord Wallace, so I am going to allow the noble Baroness, Lady Janke, to ask her question within the allocated time.
My Lords, French Minister Clément Beaune recently said in a parliamentary answer that it could be possible to find an opt-out or more flexibility on the 90-day rule for visa-free travel in Europe but that the British had little appetite for negotiating this point. What does the Minister make of that? What action are the Government taking to get a fair deal for UK citizens on visa-free travel in European countries?
My Lords, I believe that what we have negotiated is a fair deal. It allows anyone from the UK to travel to the European Union—the Schengen area specifically—for 90 days without the requirement of a visa. This period extends 90 days for a period of up to 180 days on a rolling basis. In essence, 50% of that 180 days can be on a visa-free basis. That is a substantive agreement reached with the European Union. On the question of rights, whether of UK citizens within the EU or otherwise, as Members will be aware, two different systems operate, where in certain instances UK citizens have to declare their intent to reregister, while other instances are provided through the natural law applying to existing UK citizens. On both processes, both streams of work are very efficient and effective, and where we find a challenge there is a joint committee to try to resolve those issues.
Central Bank Digital Currency
My Lords, the UK, like many countries globally, is actively exploring the potential role of central bank digital currencies. A CBDC would be an electronic form of central bank money, like cash, that households and businesses could use to make payments. The Bank of England published a discussion paper in March 2020 exploring the possibility of a UK CBDC, and the Treasury and the Bank are working together to consider next steps.
My Lords, I thank the Minister for her Answer. Does she agree that a digital pound held in an electronic wallet could considerably reduce bank fees and currency risks for businesses buying and selling overseas and, when combined with smart contracts, reduce friction in trade finance? Does she agree that a digital pound could benefit individuals who suffer from exchange losses in foreign transaction fees when travelling?
I agree with my noble friend that CBDCs could present a number of benefits, which the Treasury and the Bank are continuing to explore. These may include supporting resilience, innovation, competition and payments, potentially including reducing costs in domestic and international payments. The Bank of England’s paper last year noted the potential for CBDCs to enable smart contracts, including in relation to the supply and delivery of goods.
My Lords, while we have been issuing discussion papers, for the last seven years the Chinese have been undertaking practical tests of a digital currency in retail and wholesale markets. When will the Bank of England and the Government start to undertake practical tests for a pound sterling digital currency?
My Lords, the Treasury continues work with the Bank of England on its discussion paper and next steps for that. The Bank has also been part of a coalition of central banks, including the Federal Reserve and the European Central Bank, in considering the roles of CBDCs internationally and the importance of cross-border interoperability of such CBDCs.
My Lords, further to the question asked by the noble Lord, Lord Vaizey, what specifically is being done to learn from experience in other countries, including the digital yuan in China, the e-krona in Sweden and in particular the sand dollar in the Bahamas, which is already in operation?
The noble Lord is correct that a number of countries have launched pilots of central bank digital currencies, which the UK is looking at closely. As I noted previously, the UK is also leading international work to ensure that there are standards for CBDCs and that they are interoperable across different jurisdictions.
My Lords, I shall bring this down to ground a little. A central bank digital currency paves the way for the abolition of cash, but the market is already doing that: across the country, increasingly over the past year, many businesses refuse to accept cash or cheques and accept only digital—either a card or an app. There are about 5 million people in this country who are excluded because they are cash-dependent. What are the Government doing to ring-fence those people to make sure that they can continue to participate in the economy? What will they do as this move to digital gets even faster?
My Lords, I had not heard of CBDCs until I was faced with this Question. The briefing paper by the Bank of England in March 2020 is particularly useful. It is clear that the system very much depends on the successful integrity of information technology. A successful cyberattack on the systems would be catastrophic. What additional measures are the Government taking to complement the work of the Bank of England and the Treasury to ensure that any systems introduced are cyber robust?
My Lords, the Government have a leading cybersecurity programme. In addition to that, the Bank of England has committed to publishing a further paper this year on the potential financial stability impacts of digital currencies because, as the noble Lord notes, as well as the opportunities presented by these currencies there are risks that they could pose.
My Lords, CBDCs are here to stay and more than 60 central banks are studying how they could affect the role of traditional forms of money through proofs of concept. Some 36 central banks are exploring both retail and wholesale CBDCs. Will the Minister prioritise government work into how the retail use case can improve payment safety, increase domestic payment efficiency and ensure financial stability and inclusion in the metaverse?
My Lords, it is no surprise that China is a leader in central bank digital currency because essentially this involves us all having a bank account with the central bank over which the Government can, without the most rigorous safeguards, maintain panoptic surveillance. In China it is used as a means of social and economic control. Will my noble friend agree that the British people, jealous of their liberties, should be very anxious about the introduction of such a project here?
I agree with my noble friend on the importance of privacy considerations in these matters. We know that more than 80% of central banks globally are doing some form of work on CBDCs and different nations will take different approaches. In the UK, Her Majesty’s Treasury and the Bank of England are looking at all the public policy considerations of a CBDC very carefully, including privacy.
The increase in digital payments during the pandemic has happened without the introduction of a central bank digital currency. However, the Government continue to look at the potential benefits of introducing a digital currency which may improve the resilience and innovation of payment systems within the UK.
China: Convictions of Democracy Campaigners in Hong Kong
My Lords, we remain deeply concerned about the targeting of politicians and activists in Hong Kong and are following these cases closely. The apparent focus of the Hong Kong and Chinese authorities seems now to be on retribution against political opposition and the silencing of dissent. We continue to raise our concerns directly with the Hong Kong and the Chinese authorities, including this week with senior members of the Hong Kong Government. We urge the Chinese and Hong Kong authorities to respect the rights and freedoms enshrined in the joint declaration.
I thank the Minister for his reply. This Friday my friend Lee Cheuk-yan, leader of Hong Kong’s independent trade unions, along with other democrats, is likely to be sentenced to years in jail for the crimes of peaceful protest, exercising freedom of assembly and freedom of speech. China’s blatant disregard for agreements and promises and its suppressions of freedoms must be halted.
I ask the UK Government, as a signatory of the Sino-British joint declaration, to lodge a formal complaint at the UN International Court of Justice against China for violating its international obligation. As China’s prosperity is built on trade with the west, I ask the UK Government, together with the United States and the European Union, jointly to tell China that if it continues to deny people their basic human rights, trading arrangements will be put at risk.
On the general thrust of the noble Lord’s suggestions, I assure him once again that we are not just working directly in raising these issues with the Chinese and Hong Kong authorities but are also doing it on a range of different issues with our key partners, including the United States and European Union.
On the ICJ, the noble Lord will be aware that the application of any decision of the ICJ requires the agreement of both parties. I suggest that in this instance China may not agree with any decision taken at that level. We are keeping the situation, which is fluid, under review to see what further steps we can take.
My Lords, may I first take this opportunity to thank the Minister. Within hours of discovering that I had been sanctioned by the Chinese for my work in this House and beyond in relation to the gross human rights abuses perpetrated by the Chinese Government against the Uighurs and the people in Hong Kong, he was a great support.
Can the Minister say whether the decision by the Chinese Government to sanction UK parliamentarians and convict—as we have heard from the noble Lord, Lord Jordan—decent, good pro-democracy activists in Hong Kong will finally lead to the announcement of Magnitsky sanctions on Hong Kong officials? They are clearly responsible for the dismantling of the city’s autonomy and for covering up human rights abuses.
I am sure I speak for every Member of your Lordship’s House in paying tribute to the noble Baroness and other parliamentarians, as well as others outside Parliament, who continue to raise their voices in the interests of the Uighur community within China.
On the noble Baroness’s specific points about Magnitsky sanctions, while I cannot speculate, recently we have taken specific steps against those operating in Xinjiang, as I am sure the noble Baroness acknowledges. As I said earlier to the noble Lord, Lord Jordan, we continue to see what further steps we may take.
My Lords, it is welcome that BNO passport holders have a route to UK citizenship, but the current crackdown shows how vital it is that younger people who may not have that entitlement are also protected. What action is being taken to extend these rights to those who do not hold BNO passports?
I will first share with the noble Baroness that the BNO passport route and applications for BNO are functioning smoothly and effectively. On her second point about those who do not qualify for BNO status, if there are specific individuals who raise issues of concern and security and claim asylum within the confines of the United Kingdom, we look at those cases directly and individually.
My Lords, I agree with the noble Lord, Lord Jordan, and the noble Baroness, Lady Kennedy, whose work in this field is hugely appreciated and acknowledged. Will the Government not only to make representations but, with our allies, to take real and practical steps to bring home to the PCR and the Carrie Lam Administration in Hong Kong that repression will not work? It makes them look ridiculous and should not be pursued.
I totally agree with my noble friend’s second point and I assure him that we are working directly with partners. He will be aware that on 9 January the Foreign Secretary released a statement with Australian, Canadian and US counter- parts on the mass arrests. On 13 March the Foreign Secretary issued a statement declaring a breach of the joint declaration. We continue to work with partners on further steps we may need to take.
My Lords, I join the noble Baroness, Lady Kennedy, in thanking the Minister for his support following the imposition of sanctions. I declare that I serve as vice-chair of the All-Party Parliamentary Group on Hong Kong and as a patron of Hong Kong Watch. Has the Minister noted that, following the Chinese Communist Party’s sanctions on European Union parliamentarians, major parties in the European Parliament have indicated that until sanctions against their MEPs are lifted they will not ratify the European Union comprehensive agreement on investment with China? While sanctions attempting to curtail free speech are imposed on UK parliamentarians, are the Government willing to make a commitment today to take similar action and see how concerted measures can be taken to ensure that parliamentary free speech is not impeded?
My Lords, I note what the noble Lord has said. Again, I pay tribute to his work in standing up for the rights of people in both China and Hong Kong. We will continue to observe and work with our partners to see what further steps we can take. I cannot answer the specific point he raised on trade, and nor would he expect me to at this juncture, but, in terms of our relationship, we are keeping all things actively under review.
My Lords, I also pay tribute to my noble friend for the terrific work that she has done and for standing up to the bullies of the Chinese Communist Party. I also pay tribute to the noble Lord, Lord Alton. It is important that we are able to respond quickly and effectively, and that means working with our allies. It is now more than a month since the US applied sanctions to Hong Kong officials. Why is it taking us so long? Why are we not working with the United States to ensure that these bullies are stood up to?
My Lords, I assure the noble Lord that we are working with the United States. However, in applying any sanctions to anyone across the world, or to any organisation, we need to ensure that, with the robust test that we have set up with the Sanctions and Anti-Money Laundering Act, they are fully justified and can be defended.
My Lords, on page 63 of the integrated review the Government say:
“We will not hesitate to stand up for our values and our interests where they are threatened, or when China acts in breach of existing agreements.”
How successful have we been in standing up for our values and interests in relation to Hong Kong?
My Lords, we have been successful. For example, following the action we have taken in the context of the Human Rights Council, there has been an increase in the number of countries supporting the United Kingdom’s statements, not just on Hong Kong but on Xinjiang as well.
My Lords, domestic Ministers are currently making preparations across various departments to welcome Hong Kong British national (overseas) passport holders and to ensure that their settlement works well across the four nations. However, I am concerned about some of the families and friends that they leave behind in Hong Kong. Is the Foreign Office making representations to ensure that the families of any of those who take up visas and settle in the UK are not facing retribution?
My Lords, I reassure the noble Baroness that BNO status is a generous scheme and extends to family members. As I said in answer to the noble Baroness, Lady Northover, if specific issues arise with individuals who do not qualify, wherever they may be in the world, the United Kingdom has always been generous in providing protection and I am sure will continue to be so.
My Lords, does my noble friend recognise that the obliteration of democracy in Hong Kong and the persecution of the innocent is simply following the playbook of Germany in the 1930s? A one-party state is tolerating no dissent, treating Taiwan like the Sudetenland, threatening its neighbours, exterminating a religious minority and building a massive military machine preparing for war. Will my noble friend the Minister please tell China that we will form every alliance possible in the world to challenge it?
My Lords, I say to my noble friend that Hong Kong’s prosperity and its way of life rely on the respect for fundamental freedoms, an independent judiciary and the rule of law. I further assure him that we will continue to bring together our international partners—a point made by the noble Lord, Lord Collins—to stand up for the people of Hong Kong, to call out the violation of their rights and to hold China to the obligations it freely assumed under international law. We will continue to work in that respect.
My Lords, the time allowed for this Question has elapsed and it brings Question Time to an end. We move now to the Private Notice Question on Northern Ireland and the Good Friday agreement. I call the noble Baroness, Lady Ritchie of Downpatrick.
Northern Ireland: Violence
Private Notice Question
My Lords, the UK Government take their responsibilities to protect the provisions of the Belfast/Good Friday agreement extremely seriously. The Northern Ireland Executive are united in their condemnation of recent unrest. The Government will continue to work alongside the Executive to support a peaceful, prosperous Northern Ireland. The Secretary of State for Northern Ireland has met political, community and faith leaders to call for calm and the Government will continue facilitating further constructive discussions over the coming days.
Mindful of the fact that all the church leaders on the island of Ireland have issued a statement urging political unity, what immediate action will be taken by the British and Irish Governments, acting jointly as co-guarantors of the Good Friday agreement, and working and talking with the political parties in Northern Ireland? Will they hold an immediate meeting of the British-Irish Intergovernmental Conference to address the need for renewed political stability, an end to street violence and tension and a strategy to end poverty and marginalisation —in so doing, adhering to the key principles of the Good Friday agreement, those of peace and reconciliation?
As the noble Baroness will respect, the immediate priority is to provide the Executive and the PSNI with the support needed to manage the current unrest. However, we continue to consider a range of options to support their efforts in the medium term. These include the British-Irish Intergovernmental Conference—the BIIGC, to which the noble Baroness referred—which is an important element of strand 3 of the Belfast/Good Friday agreement and stands to promote bilateral co-operation at all levels and in all matters of mutual interest.
My Lords, does my noble friend agree that the recent disgraceful, totally unjustified and counterproductive violence in Northern Ireland has a number of different causes, many of them going back many years? To suggest that this is solely about Brexit is wilfully ignorant of the situation in Northern Ireland. Is it not the case that this Government remain wholly committed to upholding all strands of the Belfast agreement and, in addition to a robust criminal justice response, the Executive urgently need to focus on those policies designed to build a genuinely shared future for all the people of Northern Ireland?
My noble friend makes some sensible points. He is right that the reasons for the unrest are complex and multifarious, some to do with localised issues. The House will know that 10 April this year marks 23 years since the Belfast/Good Friday agreement was signed—an achievement of which the UK, Ireland and the US are justifiably proud and which led to transformative change. Today it falls to the people of Northern Ireland to decide what sort of society they want. It is clear that they are choosing the right path, which is to build an inclusive, prosperous and hopeful society that builds on the hard-won peace.
I support what my noble friend Lady Ritchie has said. Should the Government not decide today to pledge themselves to calling and meeting urgently the parties involved 23 years ago—the British Government, the Irish Government and the United States, perhaps including the EU—and maybe bringing in other moderators to help put the deal together? We cannot now, 23 years on, go on like this. We need to take the next steps to implement parts of the Good Friday agreement that have not been implemented and to ensure that the people of Northern Ireland have a decent and peaceful life and that children can be educated.
To reassure the noble Baroness, and to go further than I did before, much work is going on. The Northern Ireland Secretary is in contact with Northern Ireland’s party leaders. The collective priority at present is to work together to ensure public safety. The noble Baroness will know that the Northern Ireland Executive issued a joint statement on 8 April, which is a very welcome sign of solidarity against the despicable violence and which declared their support for law and order and policing. I assure the noble Baroness that nothing is off the table and they are doing their very best to resolve the current unrest.
My Lords, I also strongly condemn the recent criminal violence. Sadly, 23 years on from the signing of the Belfast/Good Friday agreement, segregation, division and poverty are still far too much a part of society in Northern Ireland. Does the Minister regard it as acceptable that only 7% of young people in Northern Ireland are in integrated education? Will he undertake to work closely with the Northern Ireland Executive as a matter of urgency to promote measures to overcome these divisions in the education sector?
The noble Baroness makes a very important and specific point about education. It is appalling that there are reports of teenagers coming on to the streets when, in fact, they should be going back to school—schools have opened—and then back home. I applaud the achievements of the community leaders, who are working extremely hard in the various parts of Northern Ireland where there has been unrest to encourage these pupils to go home and to stop adults encouraging them.
I join others in saying how deeply disappointing it is that, 23 years later, we are witnessing unjustifiable violence on the streets. However, Her Majesty’s Government have responsibilities with regard to the agreement, and I contend that, in fact, they themselves have set an example and have broken it by changing the economic status of Northern Ireland without either consultation or consent contained in the terms of the protocol. Will the noble Viscount encourage his right honourable friend in the other place to hold all-party discussions? Trying to do deals behind closed doors with a limited number of parties has not worked in the past, and the same mistakes are being repeated time and again.
I am listening to the noble Lord’s experience and knowledge. As he will know, the Belfast agreement provided a foundation for growth and a framework for peace. I reassure him that my right honourable friend in the other place, Brandon Lewis, has been working extremely hard. He has met the five parties and other community leaders to help the Northern Ireland Executive to resolve these matters.
My Lords, having been very much involved in the negotiations leading to the Belfast agreement, I ask whether the Minister can confirm that it has already been breached by the protocol and that the economic and political status of Northern Ireland has changed without the agreement of the people of Northern Ireland, which was a requirement of the Belfast agreement? Since there is this terrible trouble on the streets, which could continue, will the Minister please encourage the European community to identify the real causes of the unrest in Northern Ireland?
I am happy to report that there has been calm over the last two days, particularly last night, as the noble Lord will know. As he will also know, the protocol was designed to protect the Belfast/Good Friday agreement, east/west as well as north/south. The gains of the peace process prevent a hard border on the island of Ireland and safeguard Northern Ireland’s place in the United Kingdom.
My Lords, when we negotiated the Good Friday agreement 23 years ago, we knew that the only way to success was through intensive dialogue and negotiation. While I agree that the Secretary of State for Northern Ireland is doing his best to talk to the political parties there, is it not now time, as the noble Baroness, Lady Ritchie, has said, that the Government meet the Irish Government at prime ministerial level in what is known as the BIIGC—a specific body, set up by the Good Friday agreement to deal with matters like this one? Frankly, we need the spirit of the agreement now in these difficult times.
As the noble Lord will know, I alluded to the BIIGC earlier. The Government are very aware of the ongoing concerns of some in the unionist and loyalist community over recent months. However, I echo the words of the noble Lord: the right way to express concerns and frustrations is through dialogue, engagement and the democratic process, not through violence or disorder. As I said earlier, the Secretary of State for Northern Ireland met with community, faith and political leaders last week. I reassure the noble Lord that my right honourable friend in the other place is in regular touch with the Irish Government.
My Lords, Brexit may not be the only cause of the disorder in Northern Ireland, but it is a catalyst. There have been encouraging press reports in recent days about the progress of technical talks on resolving outstanding issues in the operation of the Northern Ireland protocol. Can the Minister tell us a bit more about this, saying when these technical talks might move to a political phase and result in an agreement to streamline checks and paperwork, while respecting the law?
I am happy to give whatever information I can to help the noble Baroness. The UK Government are committed to working rapidly with the EU through the Joint Committee to address the outstanding concerns about the protocol to restore confidence on the ground. It is welcome that the UK and EU are able to use the Ireland/Northern Ireland Specialised Committee, which they did as recently as 26 March, to take stock of outstanding issues. Following that, the UK Government have proposed a work programme to the EU—the first step in working jointly to make progress across the full range of issues that remain. However, as the noble Baroness will tell me, this is urgent.
My Lords, the human rights flaw at the heart of the Northern Ireland protocol is that, outwith the Good Friday agreement, binding law and regulation can be amended in a foreign state—in the EU—and then have direct effect in Northern Ireland without any democratic say by the people there. Does my noble friend agree that a first step to addressing this would be to change the protocol so that all binding law and regulation in Northern Ireland is made in a democratic forum where Northern Ireland electors are represented—that is, in this Parliament or, if it is a devolved matter, in the Northern Ireland Assembly? This would strengthen the Good Friday agreement in spirit and action.
All sides need to continue to work together to ensure that the protocol can deliver these objectives and ensure that Northern Ireland continues to build on the gains of the peace process. We need to create the conditions that allow people and businesses to adapt to and implement the new requirements of the protocol. Ultimately, the protocol’s fate depends on the political representatives of the people of Northern Ireland. The Stormont Assembly will vote on it in 2024, as agreed in the protocol.
My Lords, the noble Baroness, Lady Ritchie, has emphasised the widespread anxiety throughout Northern Ireland at the recent events on our streets, and the noble Lord, Lord Murphy, has endorsed that emphasis. Does the Minister agree with me that, at present, all parties must take the utmost care in their use of language, which can so easily be used as an excuse for violence? We must use every means possible to prevent us drifting back to the dark days of the Troubles. Does he agree that we need to emphasise care in what we say?
Notwithstanding the barking in the background of the noble and right reverend Lord’s call, it was a serious question. He is absolutely right: as well as the work that my right honourable friend in the other place is doing with community leaders, measured language is very important. We do not want to see again these disgraceful scenes and the reckless, dangerous and criminal behaviour on the streets. Of course, this week’s events do not reflect the true spirit of Northern Ireland—the creativity, the optimism, and the determination never to return to the conflict and division of the past.
My Lords, does the Minister agree that at least some people in Northern Ireland believe that the British Government are not as interested in what is going on there as previous British Governments used to be? Furthermore—[Inaudible]—the Government made repeated statements that the protocol—[Inaudible] —not impose any constraint. The Government have to think harder about how we treat the people of Northern Ireland—[Inaudible]—honestly and properly.
I am sure that the Minister will agree to write to the noble Lord, Lord Dubs, in response to the question. I call the next speaker, the noble Baroness, Lady Hoey.
My Lords, no one in government should underestimate the frustration, the disappointment and even the anger across Northern Ireland at the protocol, but it is not the only reason for the recent violence, which we all the condemn. There is an underlying feeling that the east-west relations aspect of the Belfast agreement has been disregarded and that north-south relations have been given more importance. When will Her Majesty’s Government stop taking the neutral position that they seem to adopt? Like the Irish Government, who speak up for Irish nationalism, when will the United Kingdom Government start speaking up for the British union?
We have been doing just this. The union is very important. We have said again and again that Northern Ireland is a firm part of the United Kingdom. On the noble Baroness’s question relating to east-west, I suspect that she is referring to the current challenges and the details that need to be sorted out as a result of Brexit. Much work has been done to ensure that food supplies, parcels et cetera are delivered to Northern Ireland from Great Britain and that supermarket shelves are full, as they should be.
My Lords, the time allowed for this Question has now elapsed. My apologies to the noble Lords, Lord Hain and Lord Dubs. We will have a brief pause to allow the Chamber to reassemble in readiness for the next business.
Arrangement of Business
My Lords, we come to Report on the Overseas Operations (Service Personnel and Veterans) Bill. I will call Members to speak in the order listed. Short questions of elucidation after the Minister’s response are discouraged. Any Member wishing to ask such a question must email the clerk. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group.
Overseas Operations (Service Personnel and Veterans) Bill
Relevant documents: 9th Report from the Joint Committee on Human Rights, 30th and 36th Reports from the Delegated Powers Committee
Clause 2: Presumption against prosecution
1: Clause 2, leave out Clause 2 and insert the following new Clause—
“Ability to conduct a fair trial
The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”Member’s explanatory statement
This new Clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
My Lords, as we open the debate for the Report stage of the overseas operations Bill, I want to remind colleagues that, like many across this House, we remain determined to protect our troops from vexatious claims and shoddy investigations. We want it to be done in a way which directly tackles the problems head on, and which is in line with our international obligations. As I move Amendment 1 and speak to Amendment 6, it is with these aims clearly in mind.
I am sure that the Government will try to portray Amendment 1 as a wrecking amendment, but nothing is further from the truth. It aims to protect troops directly by removing the presumption and ensuring that prosecutors have regard to whether there can be a fair trial given the time allowed.
As drafted, the Bill is silent on the cycle of reinvestigations, and we cannot wait for the outcome of yet another MoD review before we deal with it directly. That is why we also fully support Amendment 6, which states, importantly, that there must be compelling evidence to justify a new investigation. It would place an effective framework around investigations, still allowing them to pursue new leads or witnesses when appropriate. This approach is complemented by Amendment 1, but we accept that Amendment 6 might be seen as the priority.
Ministers have identified problems with vexatious claims and shoddy investigations but are pursuing an indirect approach, and many colleagues do not understand why. We have the Bill in front of us now, so let us amend it now to solve the problems for good. I beg to move.
My Lords, I thought it would be interesting to look back at the Conservative Party’s manifesto for the 2019 election. It said that
“we will introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces and further incorporate the Armed Forces Covenant into law.”
You will note that nothing is said there about a presumption against prosecution or anything about the criminal law, so the proposals in this Bill have been dreamed up without consultation. Certainly, there was no consultation with the former Judge Advocate-General, Jeff Blackett, who is internationally respected for his expertise in this field. As far as I can ascertain, there was no consultation either with the Director of Service Prosecutions or any of his highly respected predecessors. How, incidentally, in the light of the manifesto commitment can the Government resist the amendment that we shall later discuss in the name of the noble Lord, Lord Dannatt, on the Armed Forces covenant?
The hole in this Bill is that it does not directly address the scandal of delayed investigations and reinvestigations of service personnel. Amendment 6 would fill that gap with a code of investigation procedures. Investigations are fraught with difficulty in overseas operations. They operate in an insecure environment; potential witnesses may be reluctant to speak; there are language and cultural difficulties; and forensic services of the quality to be found in the UK may be unavailable for pathological examinations, DNA sampling, fingerprints and so on. I recall a case from Iraq in which the body of an alleged victim had been buried on the same day, in accordance with Muslim custom, in a cemetery in Najaf which covers 1,500 acres. No Iraqi witness could pinpoint the exact place and, accordingly, there could be no pathological investigation of the cause of death—indeed, in that case, it was an issue as to whether anybody had been killed at all.
It is obvious, therefore, that investigations may be protracted. It is equally obvious that the possibility of prosecution cannot be held over a service man or woman indefinitely. There has to come a point where a decision is made: should this case proceed, or should it stop? Amendment 6 proposes a workable and practicable code in which the service police or other investigator is supervised and monitored by the Service Prosecuting Authority under the direction of the independent Director of Service Prosecutions. Within six months of the report of allegations to the service police, an investigator has to be satisfied that there is sufficient evidence of criminal conduct to refer the investigation to the SPA. Once he is so satisfied, he must make that report within 21 days, submitting his case papers to date for consideration.
Under the proposed subsection (4), the SPA has power to
“order the investigation to cease if it considers it unlikely that charges will be brought.”
Alternatively, the SPA will advise and direct the investigator on the issues he needs to clarify and the direction in which his inquiry should proceed. If the investigation proceeds, the code in Amendment 6 requires that it be reviewed by the SPA every three months, when a fresh decision will be made on whether to cease or proceed with the investigation. On its conclusion, the investigator must send his final report, with accompanying case papers, to the SPA.
The case cannot be reopened at the whim of the investigators. The consent of the Director of Service Prosecutions would have to be sought and granted only on the grounds that there is new and compelling evidence or information that might materially affect the previous decision to close the investigation and might lead to a charge being made. A decision to reopen would, of course, be challengeable by judicial review. As a final back-up, the Judge Advocate-General is given power to give practice directions for these procedures.
So there we have it: a code tailored for the particular circumstances and difficult environment of overseas operations. I shall be moving Amendment 6 in due course. But I also add my support to Amendment 1. The position of the DSP has evolved. Amendment 1 emphasises an important part of his role—considering the public and the service interest in deciding to prosecute and, namely, whether a fair trial might be prejudiced by delay.
The answer to the problem of delay is not to introduce the concept, novel to serious offences in the criminal law of this country, of presumption against prosecution after an arbitrary period of five years has elapsed. Let us take a likely scenario: an ex-soldier confesses to shooting a wounded prisoner, but no evidence emerges for 10 years because the “wall of silence” of his comrades —a phrase used by the trial judge in the case of Baha Musa—has protected him.
Blanket walls of silence appear in other contexts. I once prosecuted a prisoner and extracted a confession from a fellow prisoner of the abduction and murder of a little girl four years before. The first prisoner said nothing of the man’s confession for five years. But then he became an evangelical Christian and finally reported it to the prison governor. The Government say that for such a heinous crime as shooting a wounded prisoner, the presumption would probably be waived, but by whom? Who would decide whether the threshold of heinousness had been passed? If the presumption would be waived routinely so that every murder in theatre should be prosecuted, then murder as a crime should appear in the schedule to this Bill. But if that is resisted—if there are to be degrees of murder so that the presumption would be waived in one instance but not another—what are the criteria?
I turned to the Bill to see what factors are referred to. First, it is immaterial
“whether or not there is sufficient evidence to justify prosecution”
according to Clause 1(2). Secondly, the status of the person killed is not a factor for consideration. As to whether the victim is a combatant or a civilian, captured or wounded, man, woman or child, no factors relating to the murdered person are mentioned in Clauses 1 to 3.
What the prosecutor must consider, however, is the adverse effect of operations on the perpetrator, the conditions he was exposed to and the strains and stresses of combat. But here is the most surprising thing: it is not the effect on the individual under suspicion that is considered—how he personally was affected by the exigencies of service, how he suffered from “shellshock”, to use the First World War phrase. It is not like the case of Sergeant Blackman, who remembered, after he had been convicted but in time for his appeal, that he had personally been suffering from stress, and his responsibility was thereby diminished. No; Clause 2(3) provides that
“the prosecutor must have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.”
The test is objective. The presumption against prosecution applies even if the personal resilience of the soldier who commits murder or a war crime is such that he is unaffected by the stresses of combat. It is a charter for the callous, psychopathic killer hiding in a military uniform.
My Lords, I shall speak to Amendment 6. The Bill sets out to make better provision about legal proceedings for our Armed Forces when they are or have been engaged on overseas operations. The Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings implies that that solves the problem. However, it is the investigation and reinvestigation process that is so debilitating and wears people down. Prosecution may even come as a form of relief. It is important to bear in mind that even when the presumption is in place, there is no total lifting of the threat of prosecution after five years. This can still happen if the Attorney-General sees fit.
However, that is all by the way. As I have mentioned, the investigation process needs to be addressed to ensure that it remains relevant, that a watchful, supervisory eye is kept on the process so that it does not drift, that there are timelines with which investigators have to comply and that reinvestigations are launched only after the most careful judicial oversight. Amendment 6 sets out to cover all these points, as was so well articulated by the noble Lord, Lord Thomas of Gresford. For that reason, it has my support.
My Lords, I shall say something about Amendments 1 and 6. Before I do, I draw attention to a ministerial Statement that has been put in the Library about overseas operations in which the MoD indicates its support for service personnel in these situations. The Statement—I hope your Lordships have access to a copy of it—says that the Overseas Operations Bill was introduced
“to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas. The Bill would provide a better … legal framework for dealing with allegations and claims arising from future overseas operations and recognising the unique burden and pressures placed on our service personnel.
As part of the debate on this Bill, there has rightly been a focus on the support which MoD provides to those personnel who may find themselves subject to investigations and prosecutions. We are grateful to right honourable and honourable Members of both Houses for the interest they have taken in this issue and their commitment to ensuring that service personnel and veterans who are impacted by historical allegations are properly supported.
As a matter of MoD policy, service personnel are entitled to legal guidance at public expense when they face criminal allegations that relate to actions taken during their service and where they were performing their duties. This principle is at the heart of the MOD’s approach to supporting our people and is enshrined in the relevant Defence Instruction Notices. It is a responsibility that the MOD takes extremely seriously, and we keep our policies under review to ensure that they are appropriate and tailored.
Since the early days of Iraq and Afghanistan, the Armed Forces have learned lessons on better resourcing and professionalising support to those involved in inquiries or investigations arising from operations, and the mechanisms for providing this support have been transformed in recent years. The way this is delivered and by whom will depend on the specific circumstances of the case, the point which has been reached in the proceedings and, most importantly, the needs of the individual concerned.
Any individual who is investigated by the Service Police is entitled to legal representation as well as the support of an Assisting Officer who can offer advice on the process and procedure and signpost welfare resources. The individual’s Commanding Officer and Chain of Command have overall responsibility for the person’s welfare and for ensuring access to the requisite support.
Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of the investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can either be provided through the Armed Forces Legal Aid Scheme (AFLAS) or through the Chain of Command.
Where the Chain of Command accepts funding responsibility this is means-test exempt and therefore no personal contribution will be required. The Armed Forces Criminal Legal Aid Authority (AFCLAA) will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command, including all aspects of financial and case management. However, if available evidence suggests the individual was doing something clearly outside the scope of their duty, then it would not be appropriate for that person to receive this Chain of Command funding.
All other serving personnel and veterans facing criminal proceedings prosecuted through the service justice system, and who are not covered by the Chain of Command funding, may apply for legal aid through the AFCLAA and may be required to make a personal contribution, determined by means testing, if funded through the Armed Forces Legal Aid Scheme. This is in line with civilian legal aid scheme.
There is an important exemption from the means testing requirement, which has been waived in criminal cases arising from our Iraq or Afghanistan operations heard in the Service Court. Separately, legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation and this is co-ordinated by MOD.
We also recognise that for service personnel and veterans who are involved in these processes, legal guidance by itself is not enough. This is why we have developed a comprehensive package of welfare support to ensure we deliver on our commitment to offer ongoing support to veterans.
As part of delivering on this commitment, the Army Operational Legacy Branch (AOLB) was established in 2020 in order to coordinate the Army’s support to those involved in legacy cases. Fundamental to this is ensuring that welfare and legal support is provided to all service personnel and veterans involved in operational legacy processes. The AOLB provides a central point of contact and optimises the welfare network already in place through the Arms and Service Directorates and the network of Regimental Headquarters and Regimental Associations. Veterans UK are also closely engaged in providing support to veterans and, when required, the Veterans Welfare Service will allocate a welfare manager to support individual veterans. Although the AOLB has been established to provide an Army focus to legacy issues, the support it provides is extended to the other services.
This is provided in addition to the range of welfare and mental health support that is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised and there are policy and procedures in place to help manage and mitigate these impacts as far as possible. The MOD recognises that any operational deployment can result in the development of a medical or psychiatric condition and that service personnel may require help before, during and after deployment. All Armed Forces personnel are supported by dedicated and comprehensive mental health resources. Defence Mental Health Services are configured to provide community-based mental health care in line with national best practice.
In terms of support for those who have left the forces, veterans are able to access all NHS provided mental health services wherever they live in the country. As health is devolved and services have been developed according to local populations’ needs, service specification varies. This can mean bespoke veteran pathways or ensuring an awareness of veterans’ needs. All veterans will be seen on clinical need. What is important is that best practice is shared between the home nations and there are several forums in place to provide this.
The Office for Veterans’ Affairs works closely with the MOD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.”
I am sorry that that was a rather long but, I think, very comprehensive statement of what is required. Of course, it is not only applicable to operational situations overseas but is also important in reference to all the Armed Forces. It would therefore seem right that this kind of thing should be legislated for in the Armed Forces Bill when it comes along.
I turn briefly to Amendments 1 and 6 in light of that provision. In my submission, Amendment 1 departs from a very clear statement of the situation in which particular prosecutions should not start or be continued, towards a very vague one where the decision is put on the shoulders of the prosecutor, who must decide whether a fair trial is likely to be damaged by the delay.
I should have thought that primarily that kind of decision is for the tribunal, which has responsibility. The prosecutor will be responsible for prosecution, but he does not know, and cannot know, the full detail of the effect, if any, of the passage of time on the defence. Therefore, in my submission—apart from the fact that it is completely vague— you cannot tell when the investigations are going on, whether it is true or not. It is a very big and difficult thing to establish during the course of the investigations.
It is important to remember that what this Bill is trying to do in the provisions to which Amendment 1 relates is to ensure that the investigations are not dragged on for more than five years. The Bill provides a very considerable spur to the speed with which investigations are done in order to be effective. It is completely easy to define, in the sense that you can tell when you are doing the investigation whether it is five years since the incident. You do not need to be thinking about whether the time passing has damaged the possibility of a fair trial. Apart from anything else, it is not very easy for the person who is conducting the investigation to have a balanced view of the situation for the defence. In my submission, Amendment 1 is not an improvement on what is in the Bill already.
On Amendment 6, the provisions that are set out in the statement which I read indicate quite clearly that the situation that is provided is much better than what would be done by the sort of detail which is provided in Amendment 6. The whole system indicates, as set out in that statement, that the matter is dealt with as a detailed attachment to the particular case and that what is required in each particular case may be very different in one from another. Therefore, in my submission, Amendment 6 is not an improvement on the Bill and I do not think that there is room for, or need for, an elaborate system of care other than what is provided in detail by the statement that I have read.
My Lords, I wish to offer whole-hearted support to Amendments 1 and 6 which were tabled by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton. The noble and learned Lord, Lord Hope of Craighead, also put his name to Amendment 1, and the noble and gallant Lords, Lord Boyce and Lord Dannatt, put their names to Amendment 6.
First, I wish to say something about the statement to which the noble and learned Lord, Lord Mackay of Clashfern, has referred. I was going to comment on it later in the context of the new duty of care in Amendment 14, tabled by the noble Lord, Lord Dannatt, but as the noble and learned Lord, Lord Mackay, has taken the trouble to read the statement in full, and it is therefore no doubt fresh in the minds of noble Lords, perhaps this is a convenient moment to express two considerable concerns that I have in relation to the statement by the Secretary for Defence. The first is in relation to legal aid and the second is in relation to mental health support.
In relation to legal aid, there is a very serious ambiguity—perhaps not even an ambiguity, perhaps a straightforward gap—in the support that is being offered to service personnel in relation to legal aid. I refer your Lordships to the part of the passage that reads,
“where the chain of command accepts funding responsibility, this is means-test exempt and therefore no personal contribution will be required. The Armed Forces Criminal Legal Aid Authority will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command including all aspects of the financial and case management, however”—
I emphasise “however”—
“if available evidence suggests the individual was doing something clearly outside the scope of their duty then it would not be appropriate for that person to receive this chain-of-command funding.”
So this non-means-tested automatic funding that does not require a personal contribution is not available to personnel and veterans facing the gravest peril from investigation and prosecution. This is hardly comfort to those to whom this Bill is supposed to be addressed. It is those who face the gravest allegations who principle suggests should have the greatest legal support, for it is those who are facing charges that they were doing something clearly outside the scope of their duty who are losing sleep at night as they may face dishonourable discharge and very serious criminality and consequence. This is the very group who are being let down and denied automatic non-means-tested legal provision. I have to disagree with the noble and learned Lord, Lord Mackay, about the Defence Secretary’s statement offering very much comfort at all to serving Armed Forces personnel or indeed veterans for the reason I set out: those in greatest jeopardy are left with least protection by way of legal aid.
Secondly, in relation to mental health provision, we know and the statement makes clear that to put someone in harm’s way in these circumstances is almost automatically to expose them to great jeopardy in relation to their mental health. Here is an ambiguity rather than a clear gap because at various points in the passages of the statement referring to mental health provision there are caveats about “where needed” “pathways in the community”, “best practice” and “local population needs”. I do not know what these words mean and no doubt the Minister will be able to clarify them in a moment, but to me it looks as if, subject to signposting and pathways, these people are being left, broadly speaking, to take their chances in a Cinderella part of the NHS. It does not seem clear from this statement that all serving personnel and veterans are given automatic mental health support. It is all “subject to clinical needs” or “subject to local population needs” and all of those caveats. That is what I would have said later about the need for the duty of care in the amendment tabled by the noble Lord, Lord Dannatt.
Returning to Amendments 1 and 6, Amendment 6 and the proposed new clause seem to me to address exactly what the Bill was supposed to: the problem of delayed, shoddy and, therefore, repeated investigations, which cause so much concern to members of the Armed Forces and veterans. Tackling this head-on, with some comprehensive statutory provision to push investigations to be timely and adequate, is a very good idea. Of course, the amendment has very distinguished and gallant supporters.
In relation to Amendment 1, respectfully, I could not disagree with the noble and learned Lord, Lord Mackay, more than I do. It replaces the presumption against prosecution with a very common-sense consideration of fair trials and whether they have been compromised by the passage of time. The noble and learned Lord, Lord Mackay, says that you cannot expect a prosecutor to make those determinations and that it is not appropriate, but this is what prosecutors up and down the land do every day. It is completely within, and absolutely core to, a prosecutor’s duty to consider whether it is possible, in light of the passage of time and the possible deterioration of evidence, for the accused to have a fair trial. This would be crucial to both the evidential test and, indeed, the public interest test, which all prosecutors have to consider. If that is the case—if these are normal prosecutorial factors—this might lead some noble Lords to ask why they should be put in the Bill. They should be because we have been told repeatedly during the passage of the Bill to date that a lot of what is required is comfort—clear statutory comfort to personnel and veterans that they will not be let down by the system and that they will be protected.
Putting this fair trial consideration, and including the passage of time, alongside the new provisions offered on investigations is a very good idea. As others—the noble Lord, Lord Thomas, in particular—have said, the five-year rebuttable presumption is rebuttable. Perhaps with the triple lock it is very difficult to rebut that presumption, but it will still leave concerns in the minds of personnel and veterans that a lengthy or late investigation may lead to a prosecution. It is so much better to protect people in the way offered by those who tabled these amendments. It is a far greater protection against late, shoddy and repeated investigations than the so-called triple lock that is causing so much concern. Normally, when employers and people seek to protect those who have been under especial pressure at work and in their service, it is support, not immunity, that is offered. That is the common-sense approach offered in these amendments.
My Lords, I add my support to Amendment 1, to which I have put my name. As a former prosecutor, I do not think that the task it sets the prosecutor is likely to be all that difficult, given that it must proceed on the information available to the prosecutor at the time the decision has to be taken. It may be that the information is relatively slender at the very beginning, when he is considering whether to bring proceedings, but such as it may be, it is the information that he should take into account. If one considers the stage at which proceedings are continuing, which this clause also covers, he is likely to be in possession of a good deal more information. So I do not think that there is anything wrong in the wording of Amendment 1. The essence of it lies more in what it takes out than the simple wording of what it seeks to put in. What it takes out is the presumption. I have no difficulty with the way in which the presumption is expressed in Clause 2, but I do object to it in principle.
The interests of justice work both ways. Of course, one must have regard to the interests of the person against whom proceedings are contemplated or are in progress. But there are the interests of the complainant, too—the victim, as the noble Lord, Lord Thomas of Gresford, reminded us. In the ordinary course, the prosecutor’s decision-taking process is even-handed, with no bias towards one way or the other. Here it is being tipped one way, without regard to what this means for the complainant on the other side. There seems no room here for any regard to be had to the gravity of the offence or its consequences, and that makes me very uneasy. It is even more troubling where the proceedings are already in progress and the question is whether they should be continued. There is no guidance here at all. As the noble Lord, Lord Thomas, said, where are the criteria? For example, does it matter how far the proceedings have got? To apply the presumption to proceedings already under way, whatever stage they have reached, seems very odd.
Then there is the effect of the presumption on our treaty obligations. I refer in particular to the torture convention, which we will come to discuss with Amendment 3. As it happens, I do not have my name down to speak in that group, although I fully support that amendment, so perhaps I can take this opportunity to say something about it briefly, as the point is relevant here too. I expressed my strong feelings in Committee about the way that the Bill as it stands runs counter to the absolute and unqualified obligation on this country under the 1987 UN convention against torture to take jurisdiction against any alleged offender found within its territory. This is an international crime from which there is no safe haven. It seems to me that the practical effect of the presumption will be to derogate from the convention, which the convention itself does not permit. If it is applied, the member or former member of the armed services whom it is intended to benefit will have no assurance that he will be immune from prosecution in some other country which is a party to the convention. Taking a holiday in Spain, for example, could expose that person to that risk. For that to happen would be humiliating to our reputation as a county that stands by the rule of law. Agreeing to Amendment 3 would remove that objection but, as the Bill stands, it is a strong reason for objecting to the presumption.
My Lords, I speak briefly in support of Amendments 1 and 6. There is little I need to add to the words of my noble friend who moved Amendment 1 and the particularly forceful speech of the noble Lord, Lord Thomas of Gresford.
As a criminal law practitioner all my professional life, I spell out my concern that, whatever the circumstances, there must be a fair trial in accordance with the principles of our criminal law. Defendants can be materially prejudiced by the passage of time and, as my noble friend Lady Chakrabarti said, prosecutors take this into account every day in their decisions. Certainly, in authorising prosecutions that came within my particular field as Attorney-General, I took this into account as a prosecutor. This is my concern. I hope it is the concern of Her Majesty’s Government regarding the current backlog of criminal trials in our courts.
I will give a simple illustration of what can happen in practice. First, memories fail. Secondly, circumstances are embroidered, sometimes innocently. Ask two or three people for their recollection of a fairly simple set of circumstances, and they frequently vary. I have spent many happy hours in our courts pointing out discrepancies in the accounts of different witnesses of very simple circumstances. The deeper one dug, the greater the rewards. They were frequently meat and drink to a defence lawyer who did not have much greater ammunition.
I will mention rape trials as an example. Whenever the defences consent, in my experience, the chances of a London jury convicting when no complaint is made within three weeks are not high. This is a very serious matter, which we will have to address at some stage. Time is of the essence in seeing that justice is done to both complainant and defendant.
I hope that the drafters of the Bill, in particular this clause, have sufficient experience of the dangers of justice not being done when there has been a passage of time. I support these amendments and believe that they are sufficiently important to be put in the Bill.
I support both Amendments 1 and 6. In the light of all that has been said, I need not add anything in respect of Amendment 1, but will make some brief remarks on Amendment 6. Investigating offences and prosecuting them are inextricably intertwined. To ensure fairness to all concerned—complainants, victims, defendants and prospective defendants—an integrated approach is essential.
By and large, in our civilian justice system, the CPS and police forces have, over the years, come to work very closely together to the benefit of all. In the military justice system, there can be no doubt that the creation of the post of DSP has, particularly through the work of the highly respected holders of that independent office, greatly improved the quality and fairness of service prosecutions. It is now clear that the conduct of investigations has given rise to most of the issues and, in that respect, reform is needed. This amendment is therefore greatly to be welcomed.
The amendment does not deal with instances in which there has been an error in failing to identify cases where there is evidence of criminal conduct but nothing has been done. It is not appropriate to address that at this stage; no doubt it can be covered when Sir Richard Henry Henriques has reported. However, in cases where the investigator has concluded that there is evidence of criminal conduct, the interposition and proposed role of the Director of Service Prosecutions should bring significant improvement.
In my experience of the military justice system, there are many reasons why delays in prosecution occur, but often the causes are lack of focus, insufficient concern about timeliness, and a lack of accountability—particularly the latter. It is clear that the delays that occurred in relation to Iraq arose in large part from these factors, although, as the Minister pointed out in Committee, there have been great improvements since and in the work of IHAT. The risks of a lack of focus, a failure to act with expedition and timeliness, and a lack of accountability remain, as they are endemic to any system. This clause should address those issues.
I will make one last observation. I particularly welcome the provision for the Judge Advocate-General to give practice directions to investigations of overseas operations. Although that would not be usual for a judge in the civilian system, the Judge Advocate-General has a unique role. This was particularly demonstrated by the highly successful and distinguished tenure of that office by Judge Blackett. When holder, he ensured that changes were made to keep the service justice system in line with modern procedure. The power to make practice directions for investigations is consistent with the Judge Advocate-General’s unique role and, I hope, will ensure that problems are promptly addressed as the way in which cases are investigated changes, with changes to the way in which matters should be done as well as the advent of technology.
My Lords, I support both amendments, but in particular Amendment 6 in the name of my noble friend Lord Thomas of Gresford. Both seek to focus on prosecution, but also deal with the issue that the Government stated at the outset that they wanted to deal with; that is, as my noble friend Lord Thomas of Gresford pointed out, vexatious claims. The way the Bill is presently drafted does little to deal with repeated investigations. These amendments, in particular Amendment 6, are intended to deal with precisely the problem that the Government say that they wish to deal with. I would be grateful if the Minister could explain to us how she feels that the Bill, as drafted, is going to do what the Government claim that they want to do, because nothing in the Bill is going to stop vexatious investigations.
These amendments are not intended to undermine the Bill. In moving Amendment 1, the noble Lord, Lord Tunnicliffe, said that the Government would perhaps think that it would rip the heart out of the Bill. Neither is intended to do that; they are intended to be helpful and ensure that vexatious and unnecessary prosecutions cease and that prosecutions are dealt with expeditiously, where appropriate. Unlike the noble and learned Lord, Lord Mackay of Clashfern, these Benches do not think that prosecutors will find it too difficult to do the job outlined for them in Amendment 1. I support the amendments, and we will call a vote on Amendment 6, as my noble friend Lord Thomas of Gresford pointed out earlier.
My Lords, first, I thank your Lordships for your contributions. As has been indicated, Amendment 1 seeks to replace the presumption against prosecution with a requirement that the prosecutor, when deciding whether or not to prosecute a case, should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.
I say as a general comment that my noble and learned friend Lord Mackay of Clashfern and the noble Baroness, Lady Chakrabarti, dwelled at length on the important matter of support for our Armed Forces, as covered by the Written Ministerial Statement tabled today. The noble Baroness raised specific issues which, with her indulgence, I propose to deal with when we debate Amendment 14 in the name of the noble Lord, Lord Dannatt.
I will explain why the Government are resisting Amendment 1. In doing so, I will cover much of what I said on this in Committee. First, we are not suggesting that service personnel or veterans have been subject to unfair trials. Our concerns have always been about the difficulties and adverse impacts on our personnel from pursuing allegations of historical criminal offences. Your Lordships are familiar with the character of such difficulties and adverse impacts—repeated inquiries and uncertainty hanging over the heads of our personnel for years as to whether any prosecution is to be brought.
Secondly, we are reassured that a person’s right to a fair trial—the nub of this amendment—is already protected in law by, among other safeguards, the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.
Thirdly, the amendment would remove the high threshold of the presumption against prosecution. We have specifically introduced this measure to provide the additional and overdue protection that we believe our service personnel and veterans so rightly deserve, while ensuring that, in exceptional circumstances, individuals who have done wrong can still be prosecuted for alleged offences.
Fourthly and lastly, Part 1 of the Bill already addresses the potentially negative effects of the passage of time, by requiring a prosecutor to give particular weight to the public interest in finality in Clause 3(2)(b).
The intention behind the measures the Government have introduced in Part 1 is to ensure that we help to provide reassurance to our service personnel and veterans in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans while remaining compliant with our domestic and international legal obligations. I accept that, as the noble and learned Lord, Lord Hope, argued, there may be different assessments of what may be perceived as issues of principle. The Government believe that the combination of Clauses 2 and 3 provides the appropriate balance between victims’ rights and access to justice on the one hand, and a fair and deserved level of protection for our service personnel and veterans on the other. This amendment, which would remove the presumption, would weaken that protection and undermine that balance.
The noble and learned Lord, Lord Hope, argued that the presumption is vague and unspecific. With the greatest respect, I do not agree. The concept of a presumption is widely understood in law, and it falls to facts and prosecutorial judgment as to whether the presumption is rebutted, whereas this amendment is in time undefined and in other content vague. I would therefore argue that it is itself unspecific and is an unhelpful substitute for the more clearly articulated and understood legal concept of a presumption.
Amendment 6 seeks to introduce artificial timelines for the progress of investigations and a power for the Judge Advocate-General to intervene to direct investigations. I say to the noble Lord, Lord Thomas of Gresford, that nothing was “dreamt up” in relation to the Bill. There was a consultation on the proposed approach. As I said during the debate on this issue in Committee, I remain unpersuaded of the need to introduce the limitations on the investigative process proposed in the amendment. These limitations do not apply in civilian life to civilian police force investigations; nor, interestingly, do they apply to service police investigations in the UK, so it seems that in that regard alone, the amendment creates an anomaly. However, it would also seem somewhat premature to propose changes to the investigative process while Sir Richard Henriques’ review of investigative and prosecutorial processes in relation to overseas operations is still in progress. I agree with the noble and gallant Lord, Lord Boyce, that investigations are critical. Sir Richard Henriques may have useful suggestions to make, and I suggest that we await his reports.
I set out previously and in some detail the Government’s concerns about this amendment, and I do not intend to cover all that ground again. However, I will set out briefly the key reasons why the Government are resisting it. Overseas operations should not be compared with the largely benign policing landscape of the United Kingdom, and we should not underestimate the challenges of conducting complex, robust and thorough investigations in a non-permissive, potentially dynamic and dangerous environment. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly impinge on their statutory independence.
Closing down or restricting the investigative timeline risks failing to exculpate our own forces or failing to provide much-needed closure to the families of deceased personnel. What if new evidence is claimed to have emerged which can be ascertained only by investigation? It would also bring a clearly increased risk of the International Criminal Court stepping in and determining, justifiably, that we are either unwilling or unable to properly investigate alleged offences on overseas operations.
There is already a well-established relationship between the prosecutor and the police, which ensures that a balance may be struck between further investigation and assessments of a realistic prospect of a conviction. The prosecutor can offer advice to the police but cannot direct them. That is a healthy separation of function. I submit that it would be inappropriate to fetter this discourse or to introduce a third party—the Judge Advocate-General—into the existing process. I reiterate that the same healthy relationship exists between the civil police and the Crown Prosecution Service without the need for a member of the judiciary to be involved.
The noble Baroness, Lady Smith, asked how the Bill addresses the issue of investigations. It creates a clear framework which everyone can understand around time limits for pursuing matters, whether criminal prosecutions or civil litigious matters, so that everyone involved in the process—whether the victim, the advising lawyers, the MoD, the accused or related witnesses—will now all understand that making progress with their criminal prosecution or their civil litigation claim will be made easier the sooner they set about doing that. As I have already observed—I remember saying this specifically at Second Reading and may possibly have repeated it in Committee—there is no doubt whatever that the best service you can provide to a victim or claimant is to ensure that the allegations are investigated as quickly as possible while minds are fresh and evidence is still available, and before the lapse of time may eradicate or taint what evidence there is.
For these reasons, the Government are not able to accept either amendment and in these circumstances, I ask the noble Lord to withdraw Amendment 1.
My Lords, after listening to the debate, it is clear that we are united in seeking to protect our troops from vexatious claims and shoddy investigations. Both amendments in the group seek to do this and would approach the issue head on, unlike the presumption. However, I am convinced from my previous research and from listening to the debate that Amendment 6, which has direct effect, has the appropriate priority. It seems that, while one hears little accusation of unfairness by prosecutors, as a number of noble Lords have pointed out, there is a requirement for prosecutors to ensure that prosecutions are fair. There has been much concern about the investigations, so I favour the clarity of Amendment 6. We will not divide the House on Amendment 1 and will support the noble Lord, Lord Thomas, whom we urge to test the opinion of the House on Amendment 6. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
2: Clause 5, page 3, line 27, leave out paragraph (b)
Member’s explanatory statement
This amendment is one of a series in the name of Baroness Ritchie designed to limit the extent of the bill insofar as it applies to the courts in Northern Ireland in order to remedy the incompatibility of the present bill with the provisions of the Belfast Agreement that require incorporation of the European Convention on Human Rights into Northern Irish law in a manner that ensures direct access to the courts and remedies for ECHR breaches.
My Lords, all the amendments in this group apart from Amendment 18 are in my name. Amendments 2, 9, 10, 15, 16, 17 and 30 are the core amendments and the others in my name are consequential.
The purpose of this suite of amendments is to limit the extent of the Bill’s application to the courts in Northern Ireland in order to remedy its incompatibility with the provisions of the Belfast agreement that require incorporation of the European Convention on Human Rights into Northern Irish law in a manner that ensures direct access to the courts and remedies for ECHR breaches.
These amendments are supported by the Committee on the Administration of Justice in Northern Ireland, and Rights and Security International, based in London. They are concerned that the Bill as drafted directly conflicts with binding provisions under the 1998 Belfast/Good Friday agreement and would roll back broader reforms of the peace process in Northern Ireland.
I raised these issues in Committee and took note of the Minister’s response. In the longer term, it would be preferable if I could secure a meeting with the Minister, along with the two rights-based organisations, to discuss these pertinent issues. For now, I shall continue.
Both these organisations concur with the Joint Committee on Human Rights and others that the Bill, as it applies to the UK as a whole, breaches the UK’s legal obligations under international humanitarian law, human rights law and international criminal law. Amendments to remove provisions in the Bill to address these breaches would also, by default, remove the incompatibility with the Belfast agreement. Should these amendments not be made, the issue of incompatibility with the Belfast agreement would remain and would, I fear, set a dangerous precedent if left unchallenged. I therefore urge the Minister to meet me, and representatives of both organisations, to discuss these issues further.
The Belfast agreement includes a UN-lodged international treaty, under which the UK is legally bound to implement the provisions within its competence. Paragraph 6—the Rights, Safeguards and Equality of Opportunity section of the agreement—includes the following undertaking:
“The British Government will complete incorporation into Northern Ireland law of the European Convention of Human Rights (ECHR) with direct access to the courts and remedies for breach of the Convention”.
As currently drafted, the Bill undermines this provision by limiting direct access to the Northern Ireland courts and to remedies for breaches of the ECHR in relation to proceedings in connection with overseas operations. It should be noted that the commitment to incorporate the ECHR in Northern Irish law is not limited to events in Northern Ireland.
Under Article 2 of the Ireland/Northern Ireland protocol to the UK-EU withdrawal agreement, “Rights of Individuals”, the UK has made a legally binding commitment that there will be no diminution of rights in the Rights, Safeguards and Equality of Opportunity section of the 1998 agreement as a result of the UK’s departure from the EU. This commitment is given domestic legal effect through the European Union (Withdrawal Agreement) Act 2020. It would clearly make a mockery of this Brexit-related commitment to the Belfast agreement if the Government, while simultaneously championing it, concurrently diminish rights under the same section of the agreement for other reasons. That would be the case under this Bill.
Quite clearly, the Bill would set a difficult precedent, especially in the light of the Government’s stated intentions to review the Human Rights Act and of the Written Ministerial Statement of 18 March 2020 to introduce legacy legislation for Northern Ireland that provides a level of equivalence to the current Bill.
Clause 5—in so far as it applies to Northern Ireland—would have the practical effect of reversing one of the key criminal justice reforms of the peace process. In the criminal justice review which flowed from the Belfast agreement, superintendence of the Director of Public Prosecutions by the Attorney-General was removed to ensure the independence of the prosecutor. That change was made in the context of the Attorney-General’s controversial role in decisions not to prosecute members of the Armed Forces. Clause 5 would, in effect, restore the situation whereby the UK Advocate-General for Northern Ireland would wield a de facto veto over prosecutorial decisions in cases falling under the scope of the present Bill, returning to the situation of what would be seen as political intervention in such cases. That is why my amendment seeks to leave out lines 27 to 29, which deal specifically with Northern Ireland.
As I already pointed out, I raised these concerns during Committee on the Bill on 9 March. The Minister graciously responded that
“nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland.”—[Official Report, 9/3/21; col. 1585.]
But I feel that that response was totally unrealistic, hence we have Amendment 2 and all the other amendments.
It is simply not possible to read the provisions of the current Bill as being compatible with the clear wording of the codified duties to incorporate the ECHR into Northern Ireland law under the Belfast agreement. The current Bill does not allow for either direct access to the courts or domestic remedies for ECHR breaches in the cases that fall under its remit. It is also worth pointing out that there is a view within human rights organisations that Clause 11 of the Bill, as currently drafted, explicitly limits the application of the Human Rights Act, thus limiting the incorporation of the ECHR into the law of Northern Ireland.
In response to the Minister’s assertion in Committee that the Bill is already compatible with the Belfast agreement—many would contend that this is not the case, in particular the CAJ and RSI, as well as some noble Lords who spoke in that debate—I tabled the amendments in this group, apart from Amendment 18 which is in the name of other noble Lords, to seek to limit the scope of the Bill so that it does not apply to Northern Ireland because of the direct connection with the ECHR. I hoped that these amendments, which would prevent the Bill being incompatible with the Belfast agreement, would prompt a broader debate on the viability of diminishing the incorporation of the ECHR into law in the UK as a whole, as part of attempts to address the broader problems that have been identified in the Bill.
In summary, I make one final request to seek a meeting with the Minister, together with the rights-based organisations, to clarify fully the issues and to demonstrate clearly how this Bill contravenes the Belfast/Good Friday agreement, particularly in relation to the ECHR. I beg to move.
My Lords, Amendment 18 stands in my name and that of the noble Lord, Lord Lexden. It is a simple amendment to Clause 15, seeking to put into legislation the promise made by the Government that the same protections in relation to prosecutions of veterans of overseas operations will apply to those who served in Northern Ireland—that is, to the 300,000 service personnel involved in Operation Banner from 1969. The amendment requires the Government to report on progress to that end before the necessary commencing regulations under subsection (2) are made. I hope that progress will come early rather than later, although I recognise that it will require courage within government—the same kind of courage as was displayed by the Parliamentary Under-Secretary, Johnny Mercer MP, who took this Bill through Committee in the other place.
On Second Reading, I explained that the Army and the police stopped a civil war breaking out in Northern Ireland, for which they get little thanks, just vexation, prosecutions and unending reinvestigations—largely due, ironically, to the overinterpretation of the right to life in Article 2 of the European Convention on Human Rights. They paid a colossal price in blood: some 700 soldiers, including in the UDR, and 300 RUC officers were murdered. The equivalent number of police officers killed on a UK-wide basis would be 10,000; that figure says it all.
In reality, the Bill is limited in its provisions. Reinvestigations will not be ended but I hope that they will be curtailed. It does not constitute an amnesty, although it is worth pointing out that, since the Belfast agreement, we have already had many elements of an amnesty, including the early release of all paramilitary prisoners and the letters of comfort for IRA members on the run.
Now the only matters investigated and coming to prosecution are those involving Army veterans, half a dozen of whom are awaiting trial in relation to events 50 years ago. That process has taken a very long time. Much of the investigation evidence appears to be based on files in the National Archives at Kew, where the Troubles archaeology proceeds apace. The IRA did not leave any paperwork to be excavated, of course.
The Bill before us carries in Clause 1 a permission for prosecutors to consider
“whether or not any proceedings against a person for a relevant offence should be continued”.
This is a key provision that must be extended to Northern Ireland and just might enable the persecution to cease. Our Amendment 18 is grouped with 17 others, all in the name of the noble Baroness, Lady Ritchie of Downpatrick, from whom we have just heard. Those 17 amendments are a pre-emptive strike against the extension of the Bill to Northern Ireland, which is what my amendment wants. It is being pushed hard by the legal academics at Queen’s University and the CAJ, who all seem to be more obsessed with persecuting veterans than real justice.
In the Member’s explanatory statement, the noble Baroness states that the Bill is incompatible
“with the provisions of the Belfast Agreement that require incorporation of the European Convention on Human Rights into Northern Irish law”.
However, in my view, she misinterprets the 1998 Belfast agreement. It said nothing about the prosecution or non-prosecution of members of the security forces. Yes, the UK Government undertook to incorporate the ECHR into British law; they duly did so in the November of that year when the Human Rights Act received Royal Assent. As the noble Baroness, Lady Goldie, said at Second Reading,
“nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland.”—[Official Report, 9/3/21; col. 1585.]
The Government gave a promise. I strongly want to believe that promise but I am afraid that some of the things that have happened in Northern Ireland recently show even more that there is a need for this Government, and us in your Lordships’ House, to show that we mean what we say. That is why I very much hope that the Minister will be able to accept my amendment and put it into the Bill.
My Lords, I will speak briefly in support of the collection of amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. It does not take me to remind your Lordships that this is a very difficult moment in Northern Ireland and not one to be doing anything to undermine, or anything that could be interpreted as undermining, the Good Friday agreement.
I hear the endorsement from the noble Baroness, Lady Hoey, of the Government’s position: that the Bill must do nothing to jeopardise the ECHR and the agreement. With respect, however, that view is not shared by human rights analysts in the United Kingdom, in Northern Ireland and internationally. Of course, in this respect, even the perception of jeopardising the convention, and therefore the agreement, is a significant problem.
In the context of Northern Ireland, the problem stems from going down this road of de facto—or attempted—immunities and statutes of limitation in the first place. The amendment in the name of the noble Baroness, Lady Hoey, further demonstrates the difficulty with opening this Pandora’s box and going for limits on prosecution and on suits against the Government rather than bolstering the robustness and timeliness of investigations and providing adequate support for veterans and serving personnel.
My Lords, all the amendments that the noble Baroness, Lady Ritchie of Downpatrick, has put before your Lordships would delete from this Bill its application to Northern Ireland. In other words, the result of these amendments would be that this defence Bill would not affect Northern Ireland.
It is vital that all defence legislation for the United Kingdom applies to the United Kingdom because the purpose of that body of legislation is the protection and defence of the whole United Kingdom. Therefore, whatever solution may be necessary for what the noble Baroness speaks of, it certainly cannot be to delete from the defence legislation of Northern Ireland an Act that will affect the defence legislation of the rest of the United Kingdom. I strongly suggest that this is not a feasible way of proceeding. I am all in favour of her having a meeting with the Minister in early course— I hope that the Minister will have time for that—but I do not think that we in your Lordships’ House can possibly accept this solution.
So far as the amendment in the names of the noble Baroness, Lady Hoey, and the noble Lord, Lord Lexden, is concerned, the question of how to deal with this matter is very tricky indeed. I have been anxious about it for a long time, and I do not see it getting any easier to solve. I do not feel able to comment on the wisdom of that amendment at this time, but I would be happy to hear what the Minister has to say about it.
My Lords, it is a privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, although on this occasion I do not reach the same conclusion as he does. I support the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick, for the reasons that she has eloquently given. I wish to add to that only by emphasising that it is not acceptable to undermine the commitment to the European Convention on Human Rights provided by the Belfast agreement. Recent events have emphasised the importance of upholding and, as my noble friend Lady Chakrabarti pointed out, being seen to uphold, both the letter and the spirit of that agreement.
My Lords, this has been an important short debate. As the noble Baroness, Lady Ritchie, set out very clearly in her speech, these amendments aim to limit the extent of the Bill in so far as it applies to the courts in Northern Ireland. The Good Friday/Belfast agreement provides that the Government will complete incorporation of the European Convention on Human Rights into Northern Ireland law, ensuring direct access to the courts and remedies for breach of the convention. When we debated a different set of amendments in Committee last month, a number of noble Lords raised very real concerns that the Bill, as it currently stands, could potentially be interpreted as undermining this requirement.
As the noble Baroness, Lady Ritchie, pointed out, there are, in particular, concerns that the Bill will not allow for either direct access to the courts or domestic solutions for any breaches of the ECHR for cases that fall under its remit. When we previously debated these matters in Committee, it was made clear that this Bill does not deal with matters relating to Northern Ireland, but I would be grateful if the Minister would none the less address the specific issue of incorporating the ECHR into law in Northern Ireland.
In light of the recent tensions and, indeed, violence in Northern Ireland, it is more important than ever that the Government reconfirm their continued and unequivocal support for the Good Friday/Belfast agreement, including in all of its practical applications in terms of rights. In Committee on 9 March, I raised a number of other concerns about the Government’s general approach towards legacy issues and asked whether they remain fully committed to the balanced and well-considered approach set out in the Stormont House agreement. Some 23 years since the Good Friday/Belfast agreement was signed, and well over a year since New Decade, New Approach was published, it is increasingly important that the Government make clear their policies and general approach to legacy matters. This is all the more urgent given recent events, where, all too tragically, we have been witnessing a return to the politics of blame and division.
I appreciate that the Minister, who is always so generous in her replies, is not actually from the Northern Ireland Office, but I asked in Committee whether I could receive a more detailed reply on this subject, perhaps in a letter, or have a meeting with the Northern Ireland Office to discuss these matters in more detail. Unfortunately, neither has been forthcoming, so I would like to add to the request of the noble Baroness, Lady Ritchie, for a meeting so that we can discuss and explore these matters further.
My Lords, important issues have been raised on this group and I thank colleagues for tabling these amendments. The Good Friday agreement is central to the ongoing peace process in Northern Ireland; we all have a vital role to play in safeguarding that agreement and building on its promise, and we must ensure that this Bill, or any other, protects it.
The Bill raises important concerns over access to justice and it should be improved for the entire United Kingdom. The Government have also promised legislation to address the legacy of the past in Northern Ireland. Ministers need to get this delicate legislation right: it must be in the spirit of the Stormont House agreement; we need victims to be at the heart of legacy proposals; and the Bill must maintain a broad-based consensus on proposals, as outlined in New Decade, New Approach, which restarted power-sharing. I look forward to hearing from the Minister actual details about this, rather than the usual “when parliamentary time allows” line.
My Lords, once again I thank your Lordships for contributions to an important issue which is, for obvious reasons, very much to the forefront of our minds at the moment.
Amendment 18 in the name of the noble Baroness, Lady Hoey, seeks to create a new condition that must be satisfied before the provisions in the Bill can be commenced. That condition is for the Government to publish a report on the progress made in relation to legislation addressing the legacy of the Troubles. I thank the noble Baroness for her eloquent address, to which I know we all listened with both respect and interest, but I think she will understand that the Government cannot accept an amendment, no matter how well intentioned, that puts conditions on the timing of the implementation of provisions that seek to provide certainty and reassurance to our service personnel and veterans who have served on overseas operations, which is a different issue from the position of Northern Ireland.
I understand the concerns that sit behind this amendment, so I reassure noble Lords that the Government remain committed to making progress on legacy issues and we will not allow our brave service personnel who served in Northern Ireland to be forgotten. In order to make further progress, the Northern Ireland Office must continue to engage with the Irish Government, the Northern Ireland parties, and civic society, including victims’ groups. The Secretary of State for Northern Ireland and the UK Government recognise the importance of working with all parts of the community as part of this process.
I hope noble Lords will recognise that, sadly, the pandemic has had an impact in causing a loss of momentum, but I reassure your Lordships—in particular with regard to what the noble Lord, Lord Tunnicliffe, said just a few minutes ago—that this Government will bring forward legislation to address the legacy of the Troubles that focuses on reconciliation, delivers for victims, and ends the cycle of investigations. The Government—in particular, the Northern Ireland Office —are committed to making progress on this important issue as quickly as possible. In these circumstances, I hope that the noble Baroness, Lady Hoey, will be minded to not move her amendment.
The other amendments in this group, in the name of the noble Baroness, Lady Ritchie of Downpatrick, seek either to remove references to Northern Ireland in parts of the Bill or to stop certain provisions extending to Northern Ireland. The Bill extends to England and Wales, Scotland and Northern Ireland for a reason. Defence is a United Kingdom competence and our Armed Forces personnel are drawn from all parts of the United Kingdom, in whose name they serve. That is why the effects of the provisions in the Bill are substantively the same throughout the entire United Kingdom. It is right and desirable that the objectives of the Bill should apply throughout the United Kingdom; my noble and learned friend Lord Mackay of Clashfern made that point well.
However, as different pieces of legislation in the different nations of the UK are impacted by the Bill, to ensure technical compliance and drafting accuracy the necessary amendments have been effected in respect of the relevant law in England and Wales, in Scotland and in Northern Ireland. I say gently to the noble Baroness, Lady Chakrabarti, that the Bill is not a de facto immunity, and I think many people are coming to accept that as being an extravagant interpretation of the Bill.
Clause 10 and Schedule 4, which this group of amendments seeks to remove in their entirety, amend only the Limitation (Northern Ireland) Order 1989. These provisions introduce new factors that the Northern Ireland courts must consider when deciding whether to allow certain claims relating to overseas military operations to be brought after the primary time limit expires and set the maximum time limit for such claims at six years. It is necessary to extend similar provisions across the whole of the UK to ensure consistency. Your Lordships would acknowledge, I think, that it would be deeply unsatisfactory if the changes that the Government are introducing in relation to claims brought in England and Wales and Scotland could be circumvented by a claimant bringing their claim in Northern Ireland instead.
I am absolutely sure that the intent of these amendments is not to create legal loopholes. No one could listen to the noble Baroness, Lady Ritchie, without understanding her commitment and sincerity about the concerns that she has articulated. The stated reason for these amendments is a concern that the Bill will undermine a specific provision in the Belfast agreement stipulating that the United Kingdom Government would complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention rights. The noble Baroness, Lady Suttie, sought reassurance on this point.
As I said when this issue was debated in Committee, the commitment to incorporate the ECHR into Northern Ireland law has already been met by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly may legislate only in a way compatible with the convention rights, and that Northern Ireland Ministers must also act compatibly with these rights. As currently drafted, the Government consider the Bill compatible with the convention rights. Your Lordships will acknowledge that review of the Human Rights Act is not the responsibility of the MoD.
Statutory limitation periods, which seem to be what these amendments are mainly concerned with, are generally considered legitimate restrictions on the right of access to a court. That right of access is not absolute, and the European Court of Human Rights has upheld the compatibility of limitation periods, even if these periods are in themselves absolute, including the absolute six-year limitation period for claims resulting from intentional torts in England and Wales. That was the finding in Stubbings and Others v the United Kingdom. Limitation periods do not impair the essence of the right of access to a court. Such periods ensure legal certainty and finality, avoid stale claims and prevent injustice where adjudicating on events in the distant past involves unreliable and incomplete evidence because of the passage of time. As such, nothing in the Bill would diminish the essence of the protections that the Human Rights Act currently offers the people of Northern Ireland. I reassure noble Lords that the measures in the Bill do not undermine the United Kingdom’s commitment to human rights and to the European Convention on Human Rights.
For the reassurance of the noble Baroness, Lady Ritchie, I repeat that this Government remain fully committed to the Belfast agreement, the constitutional principles it upholds, the institutions it established and the rights it protects. This agreement has been the foundation for the welcome political progress, peace and stability in Northern Ireland over the last 22 years and will be protected going forward.
The noble Baronesses, Lady Ritchie and Lady Suttie, have asked whether I am agreeable to meeting them. I am very happy to agree to meet them if I can help them, but it may be—and I would ask them to reflect on this—that they would find engaging with the review of the Human Rights Act, and perhaps meeting with the Northern Ireland Office, more relevant to their specific concerns. If they still wish to meet me, however, I would, of course, be happy to do that. With the explanation offered by these remarks, I urge the noble Baroness to withdraw her amendment.
My Lords, I thank all noble Lords who have contributed to this debate, some in favour of my amendment and others not. That is the very nature of debate: it is about achieving an opinion that can be either for or against a particular Motion or amendment—or, in this instance, several amendments.
The noble Baroness, Lady Hoey, outlined her amendment in relation to Operation Banner. She obviously viewed my amendments as a pre-emptive strike at removing the references to Northern Ireland from the Bill. The noble Baroness, Lady Chakrabarti, believed that it was important not to undermine human rights provisions, particularly in relation to the Belfast/Good Friday agreement—a view also taken by the noble Lord, Lord Hendy. The noble and learned Lord, Lord Mackay of Clashfern, who is very much a learned lawyer, said that this was about protecting the defence of the UK. While I understand that argument, I am none the less concerned that there will be contraventions of the Belfast agreement in terms of the ECHR.
The noble Lord, Lord Tunnicliffe, agreed about the importance of the Belfast agreement, particularly at the moment, in developing political stability—a view shared by the noble Baroness, Lady Suttie—and the importance of that political stability. As I said earlier during my Private Notice Question, there is a compelling need for the British and Irish Governments to meet as part of the intergovernmental conference, a provision within the Good Friday agreement to deal with all these issues, including this one, which will become very pertinent to legacy issues and veterans.
The Minister has kindly agreed to the meeting request of the noble Baroness, Lady Suttie, and me. I suggest, in relation to that, that we might meet the noble Baroness, the noble and learned Lord and the Minister at the Northern Ireland Office, because these are issues to do with the Belfast agreement and Northern Ireland. While my views and concerns have not been assuaged to any degree, I feel that these issues would be better explored in such a meeting, to which the noble Baroness has very kindly agreed. On that basis, I beg leave to withdraw my amendment.
Amendment 2 withdrawn.
3: Clause 6, page 4, line 11, at end insert—
“( ) An offence is not a “relevant offence” if it amounts to—(a) torture, within the meaning of section 134 of the Criminal Justice Act 1988 (torture); or(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001 (meaning of “genocide”, “crime against humanity” and “war crime”).”Member’s explanatory statement
This amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.
My Lords, Amendment 3 is in my name and that of the noble Lord, Lord Alton, and my noble friends Lord Campbell and Lord West. The amendment will provide that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide and torture.
Maybe after a lifetime in politics I was affected by some uncharacteristic naivety in thinking that the Government, faced by almost universal and expert opposition on this aspect of the Bill, would by now have changed their mind. Reasonable and knowledgeable people can only be dismayed by the obduracy of Ministers in this situation, and it is why there is a more than normal responsibility on this House to ask the Commons to look again, reflect and change the Government’s mind, before lasting and serious damage is done to the interests of our Armed Forces and the reputation of this country.
The objective of the Bill is clear and understandable: it is to protect our troops in foreign operations from vexatious prosecutions. Who could reasonably object to that? Certainly not me. But sadly, the Bill does not do what it claims to do and instead actually harms those whom we seek to protect. At best it would prevent only 1% of prosecutions, but it would not prevent seemingly endless investigations. Not only would this legislation not do what it claims to do but it would single out our Armed Forces for a privileged protection previously unknown in British law—what the Law Society, in its submission to us today, calls a “quasi-statute of limitations”.
For the first time in the history of British law we would be creating a two-tier justice system in which troops acting for us abroad would be treated differently from other civilians in society. That is serious enough, and alone should make Ministers worry about what they are embarking on, but, additionally, by saying that there is a presumption against prosecution for the most serious of all crimes—namely genocide, crimes against humanity and torture—the Bill undermines some of the most basic international legal standards for which this nation was renowned.
It does not end there. As a result of this quasi-statute of limitations, our troops might, for the first time, have to appear in front of the International Criminal Court. The chief prosecutor of the ICC, Mrs Fatou Bensouda, has said that
“were the effect of applying a statutory presumption be to impede further investigations and prosecution of crimes allegedly committed by British service members … the result would be to render such cases admissible before the ICC”.
The next chief prosecutor of the ICC is a British nominee, Mr Karim Khan, and the irony might be that among his first cases could be a British one.
Like so many of my predecessors as Defence Secretary or NATO Secretary-General, in these positions I had to take weighty decisions about foreign deployments and sending people into harm’s way. These were never easy or lightly thought decisions, and there were many sleepless nights involved. No one should underestimate my feeling when I say that I believe that this Bill is bad for our troops, bad for our British legal system and very bad for our national reputation.
I ask the Minister today to reflect for a moment on a few additional factors. First, there was unanimous criticism from the noble and gallant Lord, Lord Craig, the noble Lord, Lord Dannatt, and my noble friend Lord West, in the last debate that we had. Field Marshal Lord Guthrie, former Conservative Defence Secretary and Foreign Secretary Sir Malcolm Rifkind, and former Conservative Attorney-General Dominic Grieve, have all publicly opposed this measure. What about General Sir Nick Parker, former commander of British land forces, who urged Ministers not to damage the reputation of British Armed Forces overseas? Then there is Bruce Houlder QC, a former Director of Service Prosecutions, who told the Financial Times that the five-year limit would be “an international embarrassment”. On top of all these salvos, just yesterday the UN High Commissioner for Human Rights, Michelle Bachelet, issued a statement of real significance, saying that this Bill
“in its current form, risks undermining key human rights obligations that the UK has committed to respect.”
I remind the House of the report of the non-partisan committee of both Houses of the British Parliament, the Joint Committee on Human Rights, which considered this Bill and said that
“we have significant concerns that the presumption against prosecution breaches the UK’s legal obligations under international humanitarian law (the law of armed conflict), international human rights law and international criminal law. It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”
Those are devastating comments.
Perhaps, in my naive hopefulness, I allowed myself to think that no Government, still less one ostensibly committed to the interests of our Armed Forces, would pursue a measure which would harm them, their reputation and the reputation of our country as a stalwart upholder of the highest international legal standards. That is why I hope that now, at the last minute, the Minister will recognise the forces of reason arrayed against her and, in good military parlance, make a tactical retreat. I beg to move.
My Lords, I am a signatory to the amendment tabled by the noble Lord, Lord Robertson of Port Ellen. I wholeheartedly endorse his comments. He has made the case so well, having spoken with all the advantage and experience of high office in government and NATO, that I can be relatively brief.
In Committee, the noble and learned Lord, Lord Falconer of Thoroton, pointed, as the noble Lord, Lord Robertson did, to the broad coalition inside and outside this House which spans from well-experienced military personnel to the United Nations, human rights charities and former Defence Secretaries. Those diverse voices have cogently argued that we should extend the exclusions from the presumption to cover genocide, torture and crimes against humanity. Echoing those concerns when speaking earlier today on a previous amendment, my noble and learned friend Lord Hope of Craighead also set out some of the compelling reasons why the House should support Amendment 3.
I will say a few words about the crime of genocide. Following the overwhelming support which the House gave to the all-party amendments on genocide that I recently moved to the Trade Bill, the House will have noted that many of the same arguments advanced during those debates about strengthening the rule of law also apply to Amendment 3.
Reflect for a moment that the International Criminal Court’s prosecutor has urged the United Kingdom
“to ensure that the exemption clause extends to all crimes within the jurisdiction of the Court”.
Are we seriously going to ignore this admonition? What calculation have we made of the reputational damage and the danger of being accused of being Janus-faced when we call out genocide in places such as Xinjiang, against the Uighurs, or Myanmar, against the Rohingya, but do not hold ourselves to the same stringent test?
Showing contempt or disdain for the ICC is something that we usually associate with authoritarians and dictators. We should be leary of being found in such disreputable company. It also stands in stark contradiction to the vaunted claims in the integrated review that the United Kingdom will be a world leader in promoting British values and a rules-based international order. Global Britain will be measured by its actions and not as a slogan.
The ICC’s chief prosecutor has said that, as this Bill stands, the result would be to
“render such cases admissible before the ICC”,
and that the UK would
“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide on a statutory presumption against prosecution after five years.”
As we have just heard from the noble Lord, Lord Robertson, the United Nations Commissioner for Human Rights, Michelle Bachelet, added her voice only yesterday, urging us, as parliamentarians, to heed warnings that, in its current form, the Bill risks undermining key human rights obligations that the United Kingdom has committed itself to respect. She urged us to ensure that the law
“remains entirely unambiguous with regard to accountability for international crimes perpetrated by individuals, no matter when, where or by whom they are committed”.
She went on to pay tribute to our courts and what she called
“the independence and fairness for which they are known around the world”.
She urged us to maintain and strengthen our judicial approach to atrocity crimes—to strengthen, rather than diminish, their standing and reputation.
It disturbs me that there are some within government—not the noble Baroness, I should say—who have become increasingly indifferent to our obligations under the 1948 convention on the crime of genocide and the 1998 Rome statute, which created the International Criminal Court. In their hostility to making these international treaties and obligations effective, an alarming pattern is emerging. We already have the spectre of the Chinese Communist Party using the British Government’s formula that genocide can be determined only by “competent courts”, knowing that no such court is able to do this and that this formulaic response is a guarantee that nothing will be done.
Genocide is the crime above all crimes. I end by urging Ministers to urgently change course to take our responsibilities seriously in holding the perpetrators of the worst crimes imaginable to account. If we set a precedent with the Bill as drafted, I fear that other countries will soon follow. The noble Lord’s amendment deserves our overwhelming support today.
My Lords, I support Amendment 3 and have added my name to it. I have the advantage of having heard the last two contributions to this debate, which is, to some extent, a rehearsal of that which we held in Committee. I will take issue with the noble Lord, Lord Robertson, on one point—I have often known him to be hopeful but never naive.
I am tempted to adopt a speech that I made in Committee and sit down, but I will not do that because, like those who have spoken already, I do not understand the intransigence of this Government. I do not recall any noble Lord, other than the noble Baroness herself, making any speech in favour of the Government’s position either at Second Reading or in Committee. How much does it take? How much evidence is necessary to persuade this Government to change their mind?
Of course, we have heard the weight and the quality of the evidence of the noble Lord, Lord Robertson, with his extensive experience. We heard, essentially, the forensic destruction of the government case, line by line, by the noble and learned Lord, Lord Falconer of Thoroton, in Committee, and we continue to hear the well-known and, one might think, well-informed opposition of Lord Guthrie of Craigiebank and General Sir Nick Parker. Some of these have been mentioned already, but no one has mentioned Elizabeth Wilmshurst —that most courageous opponent of the legality of military action against Saddam Hussein’s Iraq, who resigned from her position in the Foreign Office—and Sir Malcolm Rifkind, who has been both Secretary of State for Defence and Secretary of State for Foreign Affairs. How is it that, in the face of the mounting volume of evidence against them, the Government insist on holding to this position? I fail to understand.
In Committee, I quoted from the Bingham Centre for the Rule of Law. At that stage, its approach to this was to provide an executive summary, in the course of which it said that
“murder, torture and other grave war crimes face substantial legal barriers before there can be a prosecution … The Bill undermines our obligations under the Geneva Conventions and the UN Convention Against Torture”.
Again, I ask: what further evidence is required to persuade the Government that they are in the wrong place? Since then, the Bingham centre has produced a more detailed analysis of this proposed legislation. If your Lordships wish to see it reinforce what it has previously said, you will find that on page 16 of that analysis.
What do we know now? The chief prosecutor of the International Criminal Court has made pretty clear a view that might result in a British citizen, a member of the British Armed Forces, possibly being taken to the International Criminal Court—can you imagine it? This country takes pride in our being advocates for the rules-based order in the face of other countries that simply want to ignore it or toss it aside.
I refer to the interests of the United Nations and the official responsible for human rights. Can you imagine the embarrassment of a prominent member of the Security Council asserting the rules-based order, in the teeth of Russian and Chinese unwillingness? I would love to know what the permanent representative of the British mission at the United Nations thinks about the position now being adopted.
Perhaps we should not be surprised. To plagiarise Lewis Carroll, laws mean what we want them to mean. That is certainly the position that was adopted when we came to Part 5 of the Internal Market Bill. What does this do for our standing and influence? How can we make those who breach international law understand the consequences of what they are doing if we are, on the face of it, doing exactly the same ourselves?
I have some sympathy for the noble Baroness because she has gallantly sought to defend the Government’s position. However, I finish by offering her some advice: Oliver Cromwell, in a substantial disagreement with the General Assembly of the Church of Scotland, wrote on 3 August 1650—the language is perhaps of its time:
“I beseech you, in the bowels of Christ, think it possible that you may be mistaken.”
The language may no longer be appropriate, but the sentiment is surely something to which she should give effect.
I wish to speak briefly in support of Amendment 3 in the name of the noble Lord, Lord Robertson of Port Ellen, and others. I say at the outset that I will not be able to match the eloquence of the noble Lord, Lord Campbell, who preceded me and whose views I totally share.
I speak in support of this amendment, as I did in Committee, on the grounds of both principle and pragmatism. The arguments of principle that underpin this amendment are clear. Unamended, the Bill would effectively—de facto if not de jure—open the door to a time limitation on the inquiry into and, where justified, the prosecution of the most heinous of crimes set out in the Rome statute, establishing the International Criminal Court—war crimes and genocide—and those set out in the convention against torture.
I say gently to the Minister that I was a bit disappointed that, in one of her replies to earlier amendments, she suggested that the suggestion that this was a de facto limitation was quite wrong. I question what she said then because if it is not a de facto limitation, what on earth is the point of the Bill? I really do not understand it. I happen to support the main thrust of the Bill.
Neither the Rome statute nor the torture convention provides for any such time limitation on the crimes covered by them, nor in my view should they do so for crimes of that extraordinary seriousness. I suggest that to allow such a limitation into our domestic legislation is not consistent with this Parliament’s ratification of the Rome statute and of our acceptance of the jurisdiction of the ICC. At a time when there is so much evidence worldwide of these sorts of crimes being committed—the noble Lord, Lord Alton, has spoken movingly about them—we should not be playing fast and loose with our own obligations to inquire into them and to prosecute.
The arguments of pragmatism are equally compelling. Unamended, the Bill will actually increase, not decrease, the chances of British service personnel falling within the purview of the ICC. We know that because we have been explicitly warned of it by the court’s prosecutor, who has hitherto relied on our willingness to prosecute crimes under the Rome statute as a sufficient reason not to pursue such cases through the ICC machinery. If that commitment were in any way removed or questioned, the chances of action by the ICC would sharply increase. I was glad to hear the Minister, in responding to earlier amendments, recognise that that risk really exists. It would be a supreme and shameful irony if action by the ICC had to be taken by the recently appointed ICC prosecutor, a British national.
I hope that the House will amend the Bill in the sense proposed to remove from it any limitations of time for crimes set out in the Rome statute and the torture convention and will do so without in any way calling into question the original objective of the Bill: to lift the shadow of vexatious inquiries and prosecutions for lesser offences from our service personnel.
My Lords, it is a pleasure to follow the noble Lord, Lord Hannay of Chiswick. I support Amendment 3. As your Lordships may know, I have no legal or military experience and therefore enter this debate today as someone who has listened to and participated in all previous stages of the Bill, and has been powerfully persuaded that my own concerns about the Bill at the outset were rightly felt.
As did the noble Lord, Lord Campbell of Pittenweem, I shall quote from the conclusion of the recent executive summary of the briefing from the Bingham Centre:
“The UK has a long and proud reputation of decisive action against war crimes. This Bill weakens that reputation. It makes it harder, not easier to stamp out abuses that our own troops have committed. We do not protect British troops and British values by hiding from the truth or acting with impunity.”
Although it invokes “British values”, surely these are international values, based on the international rule of law.
The UN Commissioner for Human Rights, Michelle Bachelet, quoted previously by my noble friend Lord Robertson, this week urged the UK Government to heed the warnings that the Bill in its current form risks undermining the human rights obligations that the UK has committed itself to respecting. As a former teacher, when people make a commitment to respect something, I expect them to follow through.
The UN press release says:
“In its present form, the proposed legislation raises substantial questions about the UK’s future compliance with its international obligations, particularly under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment … as well as the … Geneva Conventions. These include obligations to prevent, investigate and prosecute acts such as torture and unlawful killing, and make no distinction as to when the offences were committed … ‘The prohibition of torture in international law is both clear and absolute,’ Bachelet said. ‘Article 2 of the Convention against Torture is unequivocal, stating that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”’ The obligations in the Convention to investigate and prosecute such allegations recognize none of the new distinctions that the Bill would now bring into law.”
Surely that is a reason for amendment.
Michelle Bachelet concludes:
“The ability of the UK’s courts to resolve the most serious allegations against military personnel, with the independence and fairness for which they are known around the world, should be maintained and strengthened, rather than be cut back on such problematic grounds”.
I join the noble Lord, Lord Campbell of Pittenweem, in asking why the Government cannot be persuaded that they are simply in the wrong place on this? Perhaps the Minister could offer a response to these views so clearly held by the UN and many others and, even at this stage, indicate a change of heart.
My Lords, it must be a rare thing in nature, and in life, for so many doves and hawks to fly together. I agree with every speech that has been made so far in this part of the debate, with perhaps the small caveat that I disagree with the protestations by the noble Lord, Lord Hannay, that he lacked the eloquence of my noble friend Lord Robertson of Port Ellen—he certainly did not.
I need not repeat the various points particularly regarding the coalition of disapproval in relation to refusing to, at the very least, put war crimes, crimes against humanity, genocide and torture in an excepted category. Like others, I cannot understand the Government’s intransigence, especially as they are so well served in relation to the Bill in your Lordships’ House by the noble Baroness, Lady Goldie.
As the Minister spoke gently to me with her usual charm earlier in the debate, I will speak respectfully to her in return. Five years is a very short time indeed in the context of war, covert operations or peacekeeping operations that may be ongoing five years after an alleged atrocity, so in practice this triple lock will make it very difficult to prosecute some of the gravest offences that unfortunately sometimes arise in conflict. As we have said repeatedly during the passage of this legislation, the Government have already conceded the need for certain excluded offences, particularly sexual offences, which have been placed in Schedule 1 to the Bill so do not become subject to the five-year limitation. So it is inexplicable that in the light of everything that has been said to the Government, in the most constructive tone possible, they should not listen to your Lordships’ House and add the offences mentioned in this amendment to that list.
Whenever the Minister has been asked about the distinction between these grave offences and sex offences, she has presented a response from the department about the importance of sending signals and giving confidence in relation to sex offences and overseas operations. We need that comfort and those assurances on these grave offences, not least to avoid the perversity of a situation where, in the context of sexualised torture—sadly, we know this has been perpetrated in conflict situations even by allied forces in recent decades—a veteran or a serving member of personnel could be prosecuted for indecent assault when the allegation is of sexualised torture because the five-year period had passed. That is absolutely perverse.
I urge the Minister yet again to listen to this coalition of opinion from people who do not always agree with me by any stretch of the imagination on human rights matters. Hawks and doves are in complete agreement about this. I urge her to think again. My noble friend Lady Blower may not be a lawyer or a military person, but she is an educator. As she spoke I wondered how we will explain this legislation to our children and grandchildren, let alone to the various hard men of the world cited by the noble Lord, Lord Alton, who will be applauding the opportunity that the duplicity of our position on these crimes presents them whether in China, Myanmar or elsewhere.
I can only support these amendments and hope that the distinguished signatories to them will, if the noble Baroness does not concede, test the opinion of the House.
My Lords, once again I am taking the opportunity to express my concerns about this Bill, particularly the five-year window for prosecution and the ability that that will have for the Government to meet their long-standing human rights obligations.
I support Amendment 3. I want to remind everyone that there is already an exclusion in this legislation for rape and other sexual offences. It is there correctly. I suspect that the Government, in putting this Bill together, had their ears bent by women in their own ranks saying, “You can’t possibly put off rape allegations simply because they haven’t been put forward within the five-year window.” There are many reasons why you could not bring a prosecution within that window of five years in relation to sexual offences, which we are now much more willing to recognise as one of the horrors of war. The reasons why people do not come forward and are not able to put their case within short order may be fear or lack of resources. They are often in denial about the horror they have experienced. They may be experiencing coercion or threats or a desire to avoid reliving the past. I am afraid I know all this directly. The reason why evidence is gathered over time to become strong enough to bring cases—it does not happen with speed—is because it is difficult, hard work involving sensitivity to victims. The same is true for victims of torture and other grievous war crimes.
Without the present exemption, the vast majority of rape victims, largely women, would be barred from accessing justice through no fault of their own. Victims of other forms of abuse and violence, such as torture, should be afforded the same opportunity to seek justice on their own terms and in their own time. For example, we are now gathering evidence from places such as Syria—a war that started in 2011. The triple I investigatory processes are gathering that evidence. Prosecutions will happen much further down the line; that is the nature of this.
We have led the world in advocating for the rule of law. I have met the most wonderful lawyers in the ranks of the British Army working for the British Army. They are champions of the rule of law. We should recognise that we have been at the heart of creating the well-established principles and provisions of international human rights law and international humanitarian law. It is a source of pride to me and should be to everybody. We lose our moral authority by going down this road.
I work closely with the United Nations Human Rights Council on matters of law. Senior officials are shocked, deeply alarmed and disappointed to their hearts that the UK of all nations should be retreating from this high ground, so I want to emphasise the implications of this on our standing in the world. The United Kingdom has ratified the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the United Nations convention against torture. We have heard about the convention in relation to genocide, of which I have spoken many times in this House. They all mandate the absolute prohibition of torture. The absolute nature of the prohibition is at odds with the restrictions in this Bill.
I speak with sadness that we have come to this place. In answering the questions, “What has persuaded the Government? How have they come to be in such a wrong place?”, I think this Bill was put together at a time in relation to matters to do with Iraq, and of course with memories and considerations in relation to Ireland. Courage was given to this Bill by the fact that in the United States of America there was someone like Donald Trump, who had such little respect for the rules-based international order and wanted something somewhat different. He was not interested in international law or international courts. We stand as one of the nations that has been true to those things. We have been one of the few nations that has not experienced fascism, and perhaps that has given us the experience of sticking with law and knowing why it is so important. The value of our commitments becomes meaningless and rings hollow across the international stage by bringing this Bill into being.
The people who experience torture end up deeply traumatised. The families of those who have experienced the horrors of these terrible crimes are traumatised. It takes time to work with them to put together evidence to consider prosecutions. The United Nations Human Rights Committee has also found that a state’s lack of response to an investigation of a complaint is in itself a violation of the prohibition of torture.
We are coming up against a whole body of law that we have been at the heart of creating. What are we thinking about? I wonder whether there are other lawyers in government like Elizabeth, the great lawyer in the Foreign Office who was really alarmed over the Iraq war, who are experiencing the same anxiety that something of serious consequence is being lost here. In its present form, this Bill will not only violate individual procedural human rights and create a culture of impunity for torture and inhumane treatment, but will diminish our capacity to influence in the international human rights sphere, as the noble Lord, Lord Alton, described.
I urge this House and the Government to have a rethink because the consequences of this legislation will be far-reaching. Here we are trying to speak in a world that is currently dealing with the horrors perpetrated on the Uighurs and those in Myanmar and the anxieties and fears about what is going on in Hong Kong. We need to have our voice strong in the world right now. Look at Belarus, look at the different places where horrors are taking place; we need to be a voice for values.
My Lords, in speaking to this amendment, I start by saying that I accept a number of the arguments that the Government have advanced against it. I do not think that the Bill is intended to provide UK forces with a blank cheque for torture or genocide; nor do I consider that, as currently worded, it has that legal effect. Investigations into and prosecution of those suspected of such offences should and could be pursued even after the five-year limit, provided that the evidential case is sound. I am in no doubt that those involved in such decisions would consider the facts carefully and conscientiously before coming to a decision one way or the other.
I do not regard the exclusion of sexual offences, and not of torture or genocide, as attributing any hierarchy of seriousness to these crimes. I accept that in claims of torture or genocide, the admitted outcome—the death or wounding of individuals—might reasonably be the consequence of legal military action. Sexual assault, on the other hand, can never be the result of anything but a criminal act. There is a logic behind the distinction. Nor do I accept the argument that the Bill as worded would make our own military personnel more likely to be tortured themselves. During the first Gulf War, I commanded aircrew who were shot down, captured and tortured. The Iraqis did not have, nor did they require, the incentive and cover of this Bill for their actions. I seriously doubt that future captors of UK military personnel would be likely to say to themselves, “Well, I would not ordinarily have tortured these prisoners but, in view of the UK overseas operations Act, I now will.” Regimes that are going to torture captors will; those that are not, will not. I do accept, however, that this Bill might make it harder for us to protest such actions or subsequently to hold the perpetrators to account.
My concern about this part of the Bill has less to do with its legal intent and effect, and more to do with the perceptions it may create and the consequences of such perceptions. I have said that in my view, the Bill does not diminish the seriousness with which we view or treat torture or genocide, but it is clear that many people disagree, and that they will not be persuaded by any words of mine or of the Government. This is important. What people think about such matters is crucial, regardless of whether we regard their interpretation as correct. Reputations, national as well as personal, depend on perception as well as on fact, and the UK’s reputation in the international arena is not something to be taken lightly or to be hazarded without great cause.
One possible consequence of a diminished reputation for an unswerving opposition to torture or genocide could be the increased interest of the International Criminal Court in accusations against UK military personnel—an outcome that I would regard as disastrous. I have heard the arguments against this likelihood, and I am unconvinced by them. I have in the past heard similar arguments advanced about the negligible impact that human rights legislation would have on military operations, only to see those confidently expressed opinions proved dramatically wrong. The Government no doubt feel that they are on firm legal ground with regard to the International Criminal Court, but that view has yet to be tested. Meanwhile, risk must be measured as a combination of probability and consequence. Even if the chance of challenge by the ICC is not large, the severe damage it would cause demands that we do all we can to guard against it.
The risks that I have identified might nevertheless be borne if they were sufficiently outweighed by the advantages that Clause 6 offers, but I do not believe this to be the case. The underlying problems that need to be addressed are the protracted and repeated investigations of speculative and malicious claims, along with the extension of human rights legislation into areas for which it is ill-suited. The Bill, of necessity, comes at these issues obliquely and is therefore likely to be of limited value. I know that the Government believe that the measures proposed on prosecutions will have an impact on the timeliness of investigations. I hope they are right, but the potential benefit is not obviously overwhelming. So, while I support the Government’s aim, and while I understand the logic behind the drafting of Clause 6, I believe that the current wording poses risks that far outweigh the potential benefits. Unless I hear in this debate a far more compelling argument than has so far been made against it, I shall support Amendment 3.
My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup, as well, indeed, as my noble friend Lady Kennedy in the arguments they have put forward. The House has enormous respect for the Minister. I share that respect but it is noticeable that, despite her arguments, she had no support in Committee. I looked at her closing arguments then and found this one:
“In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force”.
That seemed to be the justification for this provision: that force has to be used. I do not believe that force is the same as torture. If there were to be confusion between the two, it would be up to the courts to make a decision. It would not be up to a government Minister to say whether an action was unacceptable or, indeed, appropriate for it to be excused altogether by the provisions of this Bill.
In her closing remarks—she was trying to be helpful—the Minister also said:
“I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns.”—[Official Report, 9 /3/21; cols. 1575-77.]
I am not sure that anything has happened about that commitment. I understand why Ministers make such commitments and why she did so; perhaps she was not comfortable with the Government’s whole argument. However, I am not clear what she has done to assuage our concerns; I do not believe she has.
As has been said before, the reputation of this country is at stake. One thing we surely value very much is our reputation for adhering to the rule of law—for having a proper system for considering it and, indeed, being implacable in our opposition to any breach of it. That reputation is surely worth preserving, yet it is now at stake. We deal all the time with countries that do not observe the rule of law, be it Hong Kong, China in respect of the Uighurs, or Myanmar in respect of the Rohingyas—or, indeed, of their own citizens. There are too many examples of the rule of law being breached; we can ill afford to join the ranks of countries that breach it. We have had severe warnings that we might find our service men and women up before the International Criminal Court—which would be mortifyingly embarrassing and absolutely appalling were it to happen.
I am a member of the Joint Committee on Human Rights, which made a detailed assessment of the Bill and its various provisions and produced a report. At paragraphs 63 and 64, the report says that
“we have significant concerns that the presumption against prosecution”
runs the risk of contravening
“the UK’s legal obligations under international humanitarian law (the law of armed conflict)”
“international human rights law ... It risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.”
The report goes on to say:
“At a minimum, the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”
Nothing could be clearer than that.
We have also heard quoted today Michelle Bachelet, the UN High Commissioner for Human Rights. She said:
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
I can think of no clearer comments than those I have quoted. I fully support this amendment.
My Lords, we have heard some very distinguished speeches this afternoon and the passionate speech from the noble Lord, Lord Campbell of Pittenweem, destroyed any case that the Government might have. As an old soldier—a national serviceman—and a Defence Minister many years ago, I yield to no one in my concern to protect the armed services from vexatious investigations and prosecutions. As Attorney-General, I played a very small part in encouraging the late Robin Cook’s successful advocacy for the setting up of the International Criminal Court. As an active member some years ago, I advocated successfully at the IPA conference in Cape Town for the international recognition by all nations of the offence of torture. I believe I was kicking at an open door when the paper that I had prepared was accepted. All civilised countries now accept that the offence of torture is unique; likewise, of course, genocide.
My noble friend Lord Robertson comprehensively and eloquently moved the amendment. The Bill proposes a presumption against prosecution of torture and other grave crimes after five years, except in exceptional circumstances. As my noble friend states, this risks the creation of de facto immunity after that time. That is the bottom line. Unfortunately, the result is that our troops risk being open to prosecution by the International Criminal Court. The effect of the Rome statute is that the court can prosecute where there is no robust domestic civil process. Perhaps the Minister will say specifically what the danger is of our troops being brought before the International Criminal Court?
As a former law officer, I had the task of advising Her Majesty’s Government on international law; I cannot see how we can avoid process before the International Criminal Court. May I make a practical suggestion to the Minister? Before Third Reading, will she consult the law officers and get their views—if they have not given them already, as I suspect they may have—on the point raised by so many Members of this House, without opposition, that we are in danger of allowing our troops to be hauled before the International Criminal Court?
I strongly support the exclusion of the most serious crimes, such as torture, war crimes and genocide, from the immunity proposals. Put simply, in international law—I can only emphasise this—there is no expiry date for the prosecution of torture, war crimes and crimes against humanity. I am grateful to my noble friend for moving this amendment. The bottom line is that there is no expiry date for the prosecution of these offences. It may not have been the intention, but the unfortunate consequence is that our troops might find themselves before the International Criminal Court.
My Lords, this amendment has had no opposition. I thought very briefly that the noble and gallant Lord, Lord Stirrup, was perhaps going to speak against it because he raised concerns about the nature of some aspects of what has been said. The Minister has heard nobody from her own Benches, or rebel Labour, Liberal Democrat or Cross-Bench Peers, speaking against the amendment. Nobody has given any reason why this amendment should not be supported. That has been true at virtually every stage. The only noble Lords who perhaps could have given the Minister some succour at an earlier stage, at Second Reading, were the noble Lord, Lord Lancaster, and, in particular, the noble Lord, Lord King of Bridgwater, who listened very carefully to what the Minister said. However, even the noble Lord, Lord King, said that maybe the Government needed to think again about torture and genocide.
If there is a presumption that sexual violence and exploitation should be left out of Part 1 of the Bill, what possible justification can the Government have to leave out genocide, torture, war crimes and crimes against humanity? As the noble Lord, Lord Dubs, said, the Minister, at previous stages of the Bill but also in her written response to the Delegated Powers and Regulatory Reform Committee, has said that the Government would never ask our Armed Forces to perpetrate crimes of sexual violence or sexual exploitation. Good—that is obviously what we want to hear. However, the Minister does not say the same thing about war crimes and torture. She merely says that the Government take them very seriously. While, clearly, the Bill does not make it impossible that prosecutions could be brought against allegations of torture, genocide, war crimes and crimes against humanity, surely the logic of the Minister’s response to the Delegated Powers and Regulatory Reform Committee is that the Government, if not endorsing or requesting that people perpetrate torture and war crimes, somehow do not view them in the same way.
Occasionally on these Benches we have very different views from the Minister. We know that we are never going to change the Minister’s mind; nevertheless, we listen and we understand where the Government are coming from. Perhaps the Government have a point of principle. On this occasion, it is almost incomprehensible what the Government’s point of principle can be. If somebody has committed torture or a war crime, that needs to be investigated and prosecuted. The fact that the Government merely take it very seriously simply is not good enough. This amendment rights a complete defect in the Bill. We support the amendment and I believe that many noble Lords from all sides of the Chamber support it.
I ask whether the Minister did go away and think carefully after Committee. As several noble Lords have said, we respect the Minister but we have not yet heard any sense of reflection from the Government. We have not had a scintilla of a change. We have heard nothing that makes anybody feel that the Government are likely to change their mind. If the Government cannot find a way of changing their mind, it is essential that this House asks the other place to think again.
My Lords, there is almost universal support in this House for ensuring that torture, genocide, war crimes and crimes against humanity are excluded from the presumption. It is clear what the ICC thinks: if we do not do so, as has been quoted many times, the UK would
“forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide.”
That is why there is such strong support for Amendment 3 and, importantly, for its approach to protect these offences so that they cannot be removed by statutory instrument at a later date. I hope that the Minister has listened closely to the powerful debate and the broad coalition that spans military figures and human rights experts, and will promise that government amendments will come forward at Third Reading. Otherwise, we support my noble friend Lord Robertson in his important amendment and urge him to divide the House.
My Lords, first, I thank the noble Lord, Lord Robertson, and all other noble Lords for their thoughtful contributions. We heard some exceedingly powerful speeches on these issues in Committee, and they were echoed today. I recognise the understandable concern and emotion that accompany the arguments that have been adduced. This is an extremely important matter, perhaps the most passionately debated part of the whole Bill, and I do not underestimate the scale of my task to address the arguments advanced by the noble Lord, Lord Robertson, and his supporters, but it is my job to try. The noble and gallant Lord, Lord Stirrup, made a telling point about perception, and it is my job to try to address that issue as well.
I reassure the House that the Government have given considerable and careful consideration to the offences that are excluded from the measures in Part 1. The intent of the Bill, as drafted, ensures that the Part 1 measures will apply to as wide a range of offences as possible, in order to provide that necessary reassurance to our service personnel that the operational context will be taken into account, in so far as it reduces a person’s culpability, in the circumstances of allegations of criminal offences on historical overseas operations. The broad objective of the Bill is to support our Armed Forces personnel, and I accept that that has been recognised across the Chamber. The divergence of opinion is on how we can deliver that reassurance.
In considering the provisions of the Bill, the Government gave careful thought to the physical environment of an overseas operation. As noble Lords who have served on such operations will know, the range of activity is diverse and the threat of danger ever present. It is a lethal environment in which our Armed Forces are called upon to deal with unimaginably challenging situations, and it is predictable that, arising from such activity, allegations of wrongdoing may be made. The one type of activity which can never have any place in such an operation is the commission of a sexual offence, so I say to the noble Baroness, Lady Smith, that is why sexual offences are excluded from the Bill. She referred to that as a presumption: it is not a presumption—it is an explicit exclusion.
Some have argued that such an exclusion means that the Government are relegating other crimes to a lower classification of gravity. We are not. We are acknowledging that in an overseas conflict, because of the inherent nature of such activity, there is a predictability about allegations being made that crimes have been committed. The Government are neither defining nor categorising what these crimes may be, we are merely creating a clearer framework and structure as to how such allegations are to be handled. It goes without saying that of course we shall take other offences, such as war crimes and torture, extremely seriously. I repeat that the Government’s decision to exclude sexual offences only, as I set out in detail in Committee, does not mean that we will not continue to view with the utmost gravity other offences such as war crimes and torture.
Nor will the Bill somehow provide an excuse for poor behaviour or enable impunity for very serious crimes allegedly committed by our Armed Forces personnel. I am very grateful to the noble and gallant Lord, Lord Stirrup, for his comments in that respect and I am pleased that many noble Lords recognise that the presumption against prosecution does not amount to either an amnesty or a statute of limitations, nor the creation of a de facto immunity. I say to the noble Lord, Lord Hannay, that a bar on prosecution in gremio of the Bill would be an amnesty—it would be a statute of limitations and a de facto immunity— but there is no such provision in the Bill. I remind noble Lords that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether to prosecute. We should remember that the presumption is, of course, rebuttable.
A number of noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Kennedy, referred to the five-year period. I just observe that the period was informed by the response to the consultation carried out on the Bill. Interestingly, the period of five years was visited at an earlier stage, in Committee, and has not been revisited.
I have listened to the very real concerns expressed by many in this House, including references to many third parties holding similar views, that the Bill undermines the United Kingdom’s continuing commitment to, and damages our reputation for, upholding international humanitarian and human rights law, including the United Nations Convention against Torture. I say to the noble Lord, Lord Dubs, that I seek to assuage these concerns and to reassure once more on this point: the United Kingdom does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. Our Armed Forces will continue to operate under international law, including, of course, the Geneva conventions, and we will continue to expect that others will do the same.
I would like to explain further why the Government’s view is that Amendment 3 should be resisted. First and foremost, we are concerned that it would undermine the reassurance that we are seeking to give to our service personnel and veterans by excluding a considerable list of offences from the application of the measures in Part 1. The Bill does not prevent such offences being investigated nor prosecuted. Indeed, in relation to prosecution, the gravity of the crime will be a cogent factor. It is perhaps also worth adding that, in the interests of clarity and to preserve the structure of the Bill as currently drafted, we believe that all the excluded offences should be listed in the same place in the Bill, and that the appropriate place is Schedule 1, instead of being spread across the Bill, as the noble Lord’s amendment would provide.
I have endeavoured to present the Government’s position and, in these circumstances, I ask the noble Lord, Lord Robertson, to consider withdrawing his amendment.
My Lords, I do not have to repeat the respect that the House has for the Minister, but she does not speak with any great enthusiasm. That is not surprising because her case is so weak that enthusiasm and passion certainly cannot be part of her argument. I do not want to take up a lot of the time of the House at this stage, but let me quote what General Sir Graeme Lamb, the former director of Special Forces in the British Army, said in the weighty Policy Exchange document that was critical of this Bill. He said
“good intentions are not enough as the Bill as it stands may fail to protect our troops adequately … it does nothing to address the problem of repeat investigations.”
Then there was Bruce Houlder, the former Director of Service Prosecutions whom I quoted in my original speech, who told the Financial Times that the five-year limit would be an “international embarrassment”. I did not quote what he added, which was that
“the idea that we then treat torture and other grave crimes including homicide as excusable, and legislate in effect to make it difficult in the extreme to prosecute after five years, is really outrageous.”
The Minister has not quoted anybody in support of her contention that what the Government are saying is reasonable. I and other noble Lords and noble and gallant Lords have quoted endless examples of those who say that what is happening here today in this Bill is outrageous. Even today’s Daily Mail editorial condemns the Government for apparently legitimising torture in the way that the Bill does.
In light of the fact that the Minister has given no defence whatever, I insist that we test of the will of the House on this amendment.
Amendment 4 not moved.
Clause 7: General interpretation etc
Amendment 5 not moved.
6: After Clause 7, insert the following new Clause—
“Investigation of allegations related to overseas operations
(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2). (4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—(a) order the investigation to cease if it considers it unlikely that charges will be brought, or(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue, including—(i) possible defendants to consider,(ii) possible explanations to consider for the circumstances giving rise to the investigation, and(iii) overseas inquiries and seeking the help of overseas jurisdictions.(5) Where the investigation proceeds, the Service Prosecuting Authority must monitor and review its progress at intervals of three months and must on each review make a decision in the terms set out in subsection (4).(6) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.(7) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information which might—(a) materially affect the previous decision, and(b) lead to a charge being made.(8) The Judge Advocate General may give Practice Directions as he or she deems appropriate for the investigation of allegations arising out of overseas operations.(9) For the purposes of this section—“investigator” means a member of the service police or a civil police force;“case papers” includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports.”
My Lords, the Minister’s response to Amendment 6—on the necessity of monitoring investigations to ensure that they are timely, effective and not continuously repeated—was to defend the status quo when the current system has manifestly not prevented delays, shoddy investigations and reinvestigations casting a shadow over serving members of the Armed Forces and veterans. I beg leave to test the opinion of the House.
We now come to the group beginning with Amendment 7. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 8: Restrictions on time limits to bring actions: England and Wales
7: Clause 8, leave out Clause 8
My Lords, in speaking to these amendments, my first point is that legitimate claims for misconduct by British troops involved in overseas operations are a fact that has to be faced, however unpalatable that is. According to a Written Answer given to me by the noble Baroness, Lady Goldie, on 15 June last year,
“in excess of 1,330 claims”
have been brought against the MoD since 2003, and they have been settled at a cost of some £32 million. Nobody suggests that these were not proper claims. Indeed, the noble Baroness said:
“The claims received focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment at the hands of British military personnel.”
These claims by foreign nationals are not for negligence, as is the case with claims by British soldiers against the MoD. The House should not assume, because a discredited solicitor who has been removed from the role brought a number of claims that were successfully struck out under our legal system as vexatious, that every claim is tainted. There may be some who believe that our courts should not be open to civilians of a different colour or creed complaining of the misconduct of our military, but that is not a majority view.
Secondly, it must be appreciated that the normal limitation period for damages for personal injury is three years. For claims for damages under the Human Rights Act, for unlawful detention, for example, it is for one year. The consent of a judge must be obtained to disapply the limitation period for the commencement of actions, and based on the principle that it is equitable to both parties to disapply the time limit. In exercising his discretion, the judge has to take into account all the circumstances of the case. Particular factors are set out in Section 33(3) of the Limitation Act, the second of which is:
“the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 … or … section 12”
of that Act. The length of the delay, the reasons for it, and the strength and importance of the case to both sides are involved in the judge’s exercise of his discretion.
Clause 8 of this Bill, headed “Restrictions on time limits to bring actions: England and Wales”, alters the 1980 Act in its provisions to restrict the court’s discretion to disapply time limits for actions in respect of personal injuries or death that related to overseas operations of the Armed Forces. It will be noted that no distinction is made between actions brought by citizens of the country in which the overseas operations are taking place—foreign nationals—and actions by our own military personnel in that country for damages for, for example, negligence. It follows that every soldier injured on Salisbury Plain has greater rights to commence actions for damages for negligence than soldiers injured in overseas operations in similar circumstances. I have failed to discover any principle to justify this discrimination. This will be addressed further on Amendment 13.
Other provisions in Schedules 2 and 3, and in Clause 11 on human rights actions, provide that, in considering whether to disapply the ordinary limitation period of three years or one year, the court is to have particular regard not only to the factors of delay to which I have referred, but specifically to the ability of members of Her Majesty’s forces who remember relevant events fully or accurately or who have recorded or retained records of such events.
They must also have regard to the impact of the proceedings on the mental health of a witness or potential witness who is a member of Her Majesty’s forces. These are extraordinary provisions that require the court to consider extending or disapplying the ordinary time limits to weigh in the balance the legitimate claim of a victim injured by
“mistreatment at the hands of British military personnel”—
to use the words of the noble Baroness in the Question I referred to—against the difficulties of a military person in remembering or recording the events, or the possible effect on his mental health in giving evidence, when he might be the person who had inflicted the complained-of mistreatment on the claimant in the first place. On the one hand, there are injuries to the plaintiff or claimant; on the other, the effect on the memory or mental health of the person who inflicted the injuries.
I remember attending the Montgomeryshire assizes in Welshpool in my youth, when behind the judge’s chair there was a three-foot-high statuette of the figure of Justice, blindfolded, of course, and holding the scales in her hand—except that they were tipped down permanently to one side. That is what these provisions are like.
I do not propose to seek a vote on these two amendments in my name. Had I wished to do so, I would have wished to include “Leave out Clause 11,” which deals with the Human Rights Act claim. My name is attached to the amendment in the name of the noble and learned Lord, Lord Falconer, but there are specific inquiries I wish to make to clarify what is not clear in these clauses.
What is the meaning of the “relevant date” or “date of knowledge” from which the six-year long-stop starts to run? How is that date impacted by delayed knowledge of the manifestation of harm resulting from the act which is the subject of the claim—somebody contracting an illness much later? What is the effect of delayed knowledge of the claimant’s ability to bring a claim before the UK courts at all? What happens if the six-year period is interrupted by events totally outside the control of the claimant—for example, sickness, recovery from wounds or inability to secure legal advice?
The Government must face the impression given by these sections of the Bill that they are publicly in denial of any misconduct on the part of British troops while settling hundreds of meritorious claims behind the scenes in secret, selecting a category of cases simply on the basis that they arise out of overseas operations and applying to this category a unique bar—a brick wall—where the discretion of the court can no longer be exercised. However just and equitable it would be, it does nothing for the reputation of this country, for the rule of law or for justice. I beg to move.
My Lords, Amendments 7 and 8 are, in effect, wrecking amendments, while Amendment 13 seeks to distinguish the position of service personnel and other potential claimants. I expressed the view in Committee that I was not convinced that the provisions in Part 2 would make all that much practical difference. The primary limitation period for personal injuries is three years, as the noble Lord, Lord Thomas, has just pointed out, except in so-called delayed date of knowledge cases, as provided by Sections 11 and 14 of the Limitation Act 1980. There is a discretion to disapply the limitation period under Section 33 of the 1980 Act. As he also pointed out, claims under the Human Rights Act have to be brought within one year, with a discretion to extend in rather limited circumstances.
My experience of personal injury claims as a barrister is that courts need considerable persuasion before they extend the three-year period and that the burden rests on a claimant to persuade a court that that primary limitation period should not apply. Limitation periods exist to reflect the difficult balance that has to be struck between allowing everyone to put a line under actual or potential claims and the fact that some claimants will have good reason for delay.
The provisions in Part 2 provide a long-stop, subject to a delayed date of knowledge provision. It seems that claims arising out of overseas operations present particular difficulties for all those involved, and I respectfully differ from the comment made by the noble Lord, Lord Thomas, about Salisbury Plain, particularly in overseas operations where the theatre of operations has moved on or changed its location and it may be extremely difficult to investigate, on either side, the basis of any such claim.
As I said, the provisions are not likely to have much practical effect, but they will nevertheless have some indirect effect in encouraging appropriate claims to be brought with as much speed as is practical. They will also provide a degree of reassurance to our service personnel that a time will come when they will be involved in one way or another in so-called late claims. The noble Lord, Lord Thomas, referred to some uncertainty over what the date of knowledge might be which would defer claims. Subject to what the Minister says, I understand it to be concerned with cases where, for example, there is latent disease that could not be reasonably known about by a claimant at the time; for example, somebody who sustains mesothelioma as a result of exposure to asbestos dust or who has some other illness or injury that becomes manifest only some years after the event in question.
I am not attracted to Amendment 13 either. In Committee, the noble Baroness, Lady Chakrabarti, suggested that I was concerned only with claims brought by the military and not with those brought by the non-military or civilians in, say, Iraq or Afghanistan. That was not in fact what I said or thought. It is therefore something of an irony that this amendment would make that very distinction. I am unaware of any such provision in any other area of the law of limitation of actions—that is, a provision that distinguishes between classes of claimant. There are of course provisions distinguishing the position of a claimant who has not attained his or her majority or who lacks mental capacity. However, it would set a most unfortunate precedent somehow to elevate a particular claimant to have a special status.
The provisions in Part 2 ought to apply in precisely the same way across the board to whomsoever is involved in claims arising out of overseas operations and provide equal protection for all of them. This amendment is discriminatory and should not be included in the Bill. Surely our service personnel want to be treated fairly, rather than to be given some special privileged litigation status. I will listen with great interest to what the noble and gallant Lords who are to follow in this debate have to say about the matter, but for the moment I am unconvinced that any of these amendments should be made to the Bill.
My Lords, I will add just a few words to what the noble Lord, Lord Thomas of Gresford, said in support of Amendment 13. The provisions to which it is addressed which are of particular interest to me are in Schedule 3, which seeks to amend the legislation that applies in Scotland to the same extent to that in Schedules 2 and 4, which apply to the other jurisdictions. The crucial point is the imposition—for such it is—of an absolute prescription of six years.
As we know, the three-year limitation period that applies at present is accompanied by protections that enable the court to extend the limitation period if it is justified by the circumstances—the date of knowledge exception. It seems that the Bill applies a hard-edged cut-off that makes no allowance whatever for extenuating circumstances. I could understand it if this proposal had been accompanied by a carefully conducted research programme into how the three-year limitation has worked in practice over the years, identifying on how many occasions the period has been extended for more than three years, and why and at what point the extensions have been sought and justified. We are, of course, in this case, and indeed throughout the Bill, dealing with the consequences of operations that have been conducted overseas, maybe under very difficult circumstances. Gathering together enough information to determine whether a claim would be justified, let alone to bring together all the information needed to justify bringing the claim before the court out of time, may take much more time and effort than is needed in the more benign domestic cases. That is the reason for seeking the discrimination to which the noble Lord, Lord Faulks, referred.
Without this amendment, the proposal in the Bill is a bit of a hostage to fortune. We simply do not know what its effect would be—maybe not very great, as the noble Lord, Lord Faulks, said, but if it is there, it would seem to be unfair. I cannot see anything wrong in bringing out a class of individuals to whom this amendment is directed. In principle, what is wrong with identifying a particular class of claimants, particularly where they can be seen to be, in particular situations, disadvantaged, as we are contemplating in this Bill? For these general reasons, I am inclined to support Amendment 13.
My Lords, it is an honour to follow the noble and learned Lord, Lord Hope of Craighead. I too support the amendments. In particular, I support wholeheartedly Amendments 7 and 8, which, if accepted, would obviate the need for Amendment 13. I differ from the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Hope of Craighead, in relation to Amendment 13, which in my view does not go far enough.
Clauses 8 and 9 would have the effect of preventing a number—a small number, I accept—of meritorious civil actions being brought by service personnel, or their estates and dependants, against the Ministry of Defence, where the latter has negligently caused their injury or death. I see no justification for imposing harsher limitation provisions for actions in respect of personal injuries or death that relate to overseas operations of the Armed Forces than in relation to other civil claims. The factual matrix in which a claim arises will always be a crucial factor in the determination of the court’s discretion to allow late claims. The imposition of the time bar in Clauses 8 to10 will undermine the confidence of military personnel who might be injured or die on overseas operations. They knowingly and bravely take the risk of injury or death in enemy action, but they do not consent to risks created by the negligence of the Ministry of Defence, as in the case of my former client, the mother of a soldier killed by a high-explosive shell fired at his tank from another British tank, which had mistaken it for the enemy. After interminable investigations, belated disclosure of documents and the work of our expert, the case was made that the Ministry of Defence was at fault for a long-standing failure to fit identification equipment and for a consistent failure to train tank commanders properly in identification.
The Ministry of Defence eventually settled the case with a substantial payment but no admission of liability. It took years. Had the proposed regime of Clauses 8 to 10 been in place, my client’s action might never have got off the ground. I feel I owe it to those who might in the future be in the sad position of my former client, having lost a son or daughter, to resist the inclusion of these clauses.
What can be the justification for imposing a bar on such claimants, a bar which does not apply to any other claimants other than in relation to members of the Armed Forces who suffer personal injury or death on overseas operations? The ostensible purpose is to bar vexatious claims but, with respect, that is nonsense. Bill or no Bill, there will always be unmeritorious claims. The courts have a powerful armoury of mechanisms for throwing them out. They do not need the blunt instrument of Clauses 8 to 10. Although those clauses would time bar some vexatious claims, they would equally time bar meritorious claims. That is not forgivable. It is no answer to say that there would be few of the latter. There should be none.
In any event, as the noble Lord, Lord Thomas of Gresford, pointed out, all claims are subject to the Limitation Act, which imposes strict time limits on them. These may only be exceeded by express permission of the court—an exercise of the court’s discretion which is subject to specified and comprehensive conditions under that Act.
The imposition of the time bar in Clauses 8 to 10 is likely to undermine the confidence of military personnel who might be injured or die on overseas operations. They should not be subject to hurdles to which other claimants are not.
I agree with the sentiment of Amendment 13, which seeks to exempt service personnel from the time bar of Clauses 8 to 10. However, its shortfall is that it fails to bring the estate and dependants of such personnel within the exemption, thus allowing the time bar to apply to those in the position of my former client. Amendments 7 and 8 are therefore preferable. I had hoped that those who tabled them would have pressed them to a Division.
My Lords, Amendment 13 is about the six-year time limit imposed by the Bill on those who have been engaged on overseas operations, and the ability of such servicepeople to bring any grievances against the MoD after that time. As we have already heard, this would have the perverse effect of limiting the rights of individual service personnel by restricting their access to legal remedies for harms caused by their employers. This would not apply to their counterparts not engaged on overseas operations.
In Committee, the Minister’s comment that, based on past statistics, this might apply only in a very small number of instances was specious. The Armed Forces are all of one company and thus should all be treated the same. Even if only one person were to be affected, he or she should not be discriminated against. It cannot be just for such situations to be allowed, so I support Amendment 13.
My Lords, I had intended to involve myself deeply in the passage of this important Bill through your Lordships’ House, although I hesitate to speak on matters about which I am much less qualified to pronounce than the learned and gallant noble Lords who have made such a great contribution to our debates on the Bill. I have found it difficult to keep up with and to remain fully involved in this Bill as well as in the Financial Services Bill. For most of my working life, I have been a full-time banker; on the other hand, my military experience is limited. I was a TA soldier for 10 years and, more recently, have been honoured to act as an honorary air commodore in the Royal Auxiliary Air Force.
I very much welcome the Government’s decision to introduce the Bill and to deliver on our manifesto commitment to end vexatious legal claims. I also understand and agree with the Government’s intention in Part 2 to ensure that claims are brought sooner. This should mean that service personnel and veterans will not be subjected to criminal investigations that may be triggered by civil claims. I therefore cannot support Amendments 7 and 8 in the names of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith of Newnham, which have the effect of wrecking this part of the Bill in its entirety.
However, I am impressed by arguments by the noble and gallant Lord, Lord Boyce, and the noble Lord, Lord Thomas of Gresford, that the courts should continue to be allowed to hear personal injury claims against the Crown even after the six-year time limit has expired. I know enough about the culture within the Armed Forces—a major reason for the high regard in which they are held—to agree that it may also create situations where someone may be told that he cannot make a claim, when actually he can, but he will still believe and accept that he cannot. I am therefore sympathetic to the purpose of Amendment 13 but look forward to hearing my noble friend the Minister’s response to the powerful arguments put forward in its support.